S.1.391 25 Years On - And The Harrington Undertaking

• Published date: 17 July 2023
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Law Firm: RDJ LLP
• Author: Linda Ryan and Imelda Tierney

As S.I. 391/1998 - Rules of the Superior Courts (No 6) Disclosure of Reports and Statements approaches its 25^th birthday. The decision of the Court of Appeal in O'Flynn v Health Service Executive [2022]¹ of Mr. Justice Noonan provided a detailed overview of the case law since its introduction and showed some of the short comings of the regime, particularly in relation to more sophisticated defendants having regard to Harrington Undertakings. The Rules Committee of the Superior Courts were empowered to introduce S.I. 391 from Section 45 of the Courts and Courts Officers Act 1995.

Background Law- Disclosure of Expert report Reports and the Harrington Undertaking

The principles of S.I. 391/1998 are designed to forewarn a party of the expert evidence with which it may be confronted and has no role in investigating the strengths or weaknesses of an opponent's case.² It should facilitate the concept of a level playing field and possibility of the early resolution to proceedings. The purpose according to Judge Geoghegan in Kincaid V Aer Lingus Teo [2003] 2IR314, "is not to disclose the strengths and weaknesses of each other's case but rather to prevent surprise evidence being thrown up at trial with which the other party, at that stage is unable to deal". Any exchange should be simultaneous to avoid any danger that the rules can be abused to enable one party to gain an advantage over another.³ As Judge Noonan explained in O'Flynn, the purpose was to ensure "both sides went into trial with their cards face up on the table".

According to Harrington v Cork County Council,⁴ the requirement of fairness is not voided by the non-existence of expert reports by a defendant. Where a party certifies that no expert report exists on its behalf to be furnished, the onus falls on the other party to furnish its expert reports. However, such disclosure may be conditional upon the receiving party providing an undertaking that the reports will not be given, directly or indirectly, to any expert retained by the receiving party until after such expert has furnished their own report.

O'Flynn v Health Service Executive [2022]

In the O'Flynn case, the Plaintiff sought damages for personal injuries arising from alleged medical negligence. The Appeal Court noted that the Plaintiffs case had been pleaded "in the most general and non-specific way", that the Defendant had "for whatever reason" decided not to seek particulars of negligence but instead "it had not yet instructed experts...