The VHI is entitled to an order precluding economist Moore McDowell being an independent expert witness for a private hospital in its challenge to the VHI's refusal to approve cover for it, the Supreme Court has ruled.

The five-judge court unanimously dismissed an appeal by Shay Sweeney and the Limerick Private Hospital Ltd over the Court of Appeal’s (CoA) finding in favour of the VHI’s bid to have Prof McDowell excluded from giving expert evidence on the hospital’s behalf in its action, yet to be heard, alleging abuse by the VHI of an allegedly dominant position in the market

The Supreme Court said Prof McDowell should be precluded on the sole basis of the VHI’s claim to restrain the use of privileged and confidential information previously provided by it to him when acting as an expert witness for the VHI in two separate cases over the refusal of cover to two other private hospitals.

Mr Justice Donal O’Donnell, who gave the court’s judgment on Thursday, said, while broader considerations arose in this case, including questions of conflict of interest, the court had not addressed those and they would be addressed in an appropriate case.

This case was decided in the context of a distinguished economist requested to advise and give evidence in relation to a claim for abuse by the VHI of a dominant position in the market, he said.

This was in circumstances where Prof McDowell was previously engaged to advise and give evidence on claims made with “a very high degree of similarity”, both in terms of the facts and matter alleged in respect of the market and the conduct alleged to constitute dominance.

Overlap

There was also a very significant overlap in the relevant time period during which it was contended the dominant position in the market existed and had been abused, he said.

If Prof McDowell was allowed to continue to act in these proceedings, there would be a “real and sensible risk” of unconscious and unintentional disclosure of information obtained by him in circumstances of confidence while acting for the VHI in other litigation, he said.

In the CoA's judgment last year, Mr Justice Maurice Collins said the VHI was entitled to the preclusion order because of the "obvious" risk of an unconscious and unintentional disclosure of material provided to Prof McDowell, as an independent witness for the VHI in two other cases, one yet to be finalised, about the affairs and business of the VHI.

Neither the court nor the VHI were impugning the integrity of Prof McDowell and it was accepted he will not consciously or intentionally act in breach of his duties, the judge stressed. It would be very difficult for Prof McDowell to identify the source of any particular item of knowledge regarding the VHI and/or compartmentalise information from different sources in his mind, he said.

In the Supreme Court judgment, Mr Justice O’Donnell said Mr Justice Collins was entirely correct in his assessment of this matter.

It was no reflection on either the status of Prof McDowell, or his instinct to assert a robust independence, and still less of his honesty or truthfulness, so to conclude, he said.

Appropriate legal test

He rejected the hospital’s argument the appropriate legal test was that the VHI prove, on the balance of probabilities, a likelihood of the misuse of privileged and confidential information.

Such a test, he said, would mean an expert would only be restrained from acting if it could be shown there was at least a 51 per cent chance of disclosure of privileged or confidential information.

He agreed with the CoA such a test would be a “significant under-protection” of a party which has disclosed such information.

The applicable test is whether there is a “real and sensible risk” of disclosure and the onus of showing that is on the moving party, he held.

Based on the evidence, he held the VHI had met the test.

In an affidavit, Prof McDowell had said he is fully cognisant of his duties as an independent expert, does not retain copies of commercial confidential/privileged material provided to him by the VHI and had not relied on any such material in preparing a draft report for the plaintiffs in the Limerick case . None of those statements were contested, the CoA noted.

It further noted he had offered an undertaking not to disclose any confidential information provided to him by the VHI and the VHI had made clear his bona fides are not in question.