Healthcare & Medical Update: Is an Expert Report a Pre-requisite to Sue?
19 March 2021
In November 2020 the Supreme Court delivered its unanimous judgment in Mangan v Dockeray overturning decisions of both the High Court and Court of Appeal.
The High Court had dismissed the plaintiff’s claim on the basis that it failed to disclose any reasonable cause of action against the second and third defendants on foot of the Rules of the Superior Courts, specifically O. 19, r. 28 RSC. The Court of Appeal upheld the trial judge’s assessment. We previously reported on the decision of the Court of Appeal here, which sets out the background to these proceedings.
The Supreme Court granted permission to appeal the decision on the basis that issues of general public importance arose for consideration. The Supreme Court focused on two specific issues:
1. Where a plaintiff in a personal injuries action:
Joins an additional defendant
Pleads that while they do not have any evidence to establish negligence on the part of that additional defendant
They believe the original defendant intends to defend the claim on the basis of expert evidence that the additional defendant’s negligence caused the plaintiff’s injuries
In the above circumstances, does the plaintiff’s pleading fail to disclose a cause of action falling within the terms of O. 19, r. 28 RSC?
2. Where the plaintiff:
Does not have expert evidence of their own to support any claim of wrongdoing as against the additional defendant(s) they wish to join
The expert evidence of the plaintiff supports the contention that it was the negligence of the original defendant which caused the injuries
Is it a just application of the Court’s inherent jurisdiction to strike out a claim as an abuse of process or one which is bound to fail
Even though this could leave the plaintiff without a claim if the original defendant is successful in defending the action in the manner described?
On the first issue, the Supreme Court observed that the relevant Rule of the Superior Courts is exclusively pleadings-based and that the Court should not conduct an examination of the underlying evidence. The Court found that both the trial judge and Court of Appeal had incorrectly relied on deficiencies in evidence and on this basis alone, the Court considered that neither judgment could stand.
The Court then proceeded to the question of whether an expert report was a pre-requisite to the commencement of professional negligence proceedings. The Court began an extensive review of relevant case law and in particular to Cooke v Cronin. The general approach followed in Cooke is that proceedings should only be instigated if there is a reasonable basis for doing so. The Supreme Court considered that this approach remains the prevailing trend while acknowledging that the manner in which it had been described has varied in the case law.
Evidence is evidence
The Court saw no particular issue with the plaintiff basing allegations squarely on the fact that the first defendant had expert evidence against the second and third defendants. It formed the view that there was no reason in principle why the plaintiff could not obtain this expert evidence either by way of discovery or disclosure. The Court expressed that “evidence is evidence from wherever it might come” provided it is relevant and admissible.
The Court further added that there may be exceptional circumstances where it will not be necessary to insist upon the availability of an expert report, and that a degree of flexibility is required in this regard.
Ultimately, the Supreme Court could not conclude that there was a failure to disclose a reasonable cause of action or that the action was bound to fail. It equally did not consider that the action should be dismissed on the inherent jurisdiction basis. The effect of this decision is that the second and third defendants are once again parties to the plaintiff’s claim.
To summarise, the generally accepted position is that an expert report is required in order to ground allegations in professional negligence proceedings. However, the absence or lack of access to such an expert report is not always fatal. The key takeaway message is that a reasonable basis must exist before professional negligence proceedings are issued.
For more information on successfully defending professional negligence claims, contact a member of our Healthcare & Medical team.