Andrea Liston explains that historically, there has been some confusion on the exact interpretation of the disclosure rules. Previously, in the case of Payne v Shovlin1, both the High Court and the Supreme Court attempted to clarify the position on precisely what obligation a party is under when it comes to the disclosure of evidence. However, they did not specifically deal with reports which were essentially critiques of the opposing parties expert reports. More recently, the Irish High Court was asked to clarify the position in relation to the disclosure of such expert commentaries.
In the case of McHugh (a minor) suing by his father and next friend v Michael O'Sullivan, the defendant was being sued for failure to diagnose a patella sleeve fracture of the plaintiff's knee during an arthroscopy procedure in July 2001. The case was listed for trial in July 2011. The plaintiff took the view that commentaries on the expert reports commissioned by the defendants for the purpose of assisting counsel in cross-examination were not disclosable under the relevant legislation. Despite the plaintiff disclosing the report sought, the defendant raised the issue of disclosure of such commentaries with Ms Justice Irvine.
In her ruling, Judge Irvine stated that, the Statutory Instrument 391 of 1998 provides for a contemporaneous exchange of reports, therefore expert commentaries on those reports should not be covered by the statutory instrument, except in circumstances where any expert making such commentary is now proposing to give evidence over and beyond the evidence contained in their initial expert reports.
Based on this decision, experts can provide written commentary on an opposing party's expert report, without an obligation to disclose, as long as they are simply dealing with views expressed by the opposing expert and they are not extending or expanding the substance of their own evidence in any way. To comply with this ruling, experts must be careful to ensure such commentaries are confined or else they will fall within the disclosure rules.
1 Payne v Shovlin  IEHC 430, (2004) and  IESC 5, (2006)
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