About this case:

• Citation:
  [2019] IESC 48
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice John MacMenamin

Although commenting that the fact that the fees were not agreed or charged until after the case was completed was both unusual and undesirable, Mr Justice John MacMenamin concluded that it had not been shown that the evidence was anything other than independent, objective and unbiased.

Background

Mr Denis O’Leary claimed damages against Mercy University Hospital Cork Limited and a consultant urological surgeon, Dr Khalid M Ali Chiad Al-Safi, for medical negligence in his treatment. Mr O’Leary attended the hospital in January 2002 suffering from urological problems.

He complained that in the earlier phase of treatment, there was a failure to diagnose deterioration in his left kidney in time for remedial measures.

In the High Court in 2010, Mr Justice John Quirk held, as a matter of probability, that by that stage Mr O’Leary’s kidney had no recoverable function. Mr O’Leary’s case was dismissed, and thereafter, he was furnished with the respondents’ bill of costs.

Unusually high costs for medical experts

The bill of costs came to a total of €518,291.51, including expert medical witnesses’ fees of €57,705.60 and €47,979.14 for taking an overnight transcript. Mr O’Leary’s solicitors sought particulars of the claim for the expert witnesses’ fees, which were subsequently reduced to €48,000. Mr O’Leary complained that the fees charged by two doctors who gave expert evidence were so unusually high as to indicate a conflict of interest, or objective bias, such as to call the entire High Court hearing into question and render the trial unsatisfactory.

It was also submitted that these fees were not known at the time of the trial, and if they had been known, the details of the charges would have been deployed in an application to have the testimony of the two doctors rendered inadmissible.

Mr O’Leary complained that there was an inequality of arms in the trial, giving rise to a denial of the right to equality before the law under article 40.3 of the Constitution; the right to a fair trial under article 6(1) of the ECHR; and the right to an effective remedy under article 13 of the ECHR.

In the Court of Appeal in 2018, a costs accountant for Mr O’Leary stated that the size of the medical fees was unusual, that he had not come across fees of that scale before in his extensive experience of taxing bills of costs. Mr Justice Michael Peart said that Mr O’Leary’s case was essentially that the witnesses support had been bought, and that it was, in fact, an accusation of unprofessional conduct to the effect that the doctors had given false or misleading evidence under oath to suit the respondents’ case.

Dismissing the appeal on all grounds, Mr Justice Peart said that the issue was not suitable for dealing with on appeal bearing in mind the doctors had no opportunity to address the matter on appeal.

Supreme Court

In the Supreme Court, Mr O’Leary sought the reversal of the entire decision of the Court of Appeal. However, Mr Justice MacMenamin said many of the issues before the High Court were findings on matters of fact, therefore the determination of the Supreme Court was confined to the single issue of “whether the remuneration of the respondents’ witnesses raised a serious question as to their independence”.

Mr Justice MacMenamin considered the affidavit of the professional costs accountant, who described a fee note of €375 for a report and €1,000 for attendance in court as being “entirely within the range of predictable fees”. The accountant identified issues with the €27,230 fee for one of the medical experts who testified on behalf of the respondents, which included, inter alia:

• €15,000 professional fee;
• €6,000 for attendance in court;
• €200 per hour for considering medical records, totalling €1,600.

For another consultant, whose fees included €5,600 for the examination of court transcripts, and €9,000 for three days’ attendance in court.

The accountant said he had never previously encountered or heard such a level of costs described, and commented that the professional fee exceeded the brief fee allowed to the respondents’ junior counsel.

Mr Justice MacMenamin said that there were unusual aspects to the fee arrangements in the case and that it appeared the fees were not agreed or charged until after the case was completed. He said this was both unusual and undesirable. However, Mr Justice MacMenamin said neither this criticism, nor the substantial size of the fees, was sufficient to conclude that the testimony of the expert witnesses in the case was affected by “the exigencies of litigation” (considering Mr Justice Cresswell in the English High Court case of the “Ikarian Reefer”, National Justice Compania Naviera SA v Prudential Assurance Company Limited [1993] 2 Lloyd’s Rep 68).

Dismissing the appeal, Mr Justice MacMenamin said that it had “not been shown that the evidence was anything other than independent, objective and unbiased”.

• by Seosamh Gráinséir for Irish Legal News