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Expert for plaintiff who had previously acted for defendant could provide opinion without breaching confidentiality

By: Evan Kearney BL

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High Court refuses an application to have the plaintiff's expert witness excluded from proceedings, where he had acted for the defendants in other proceedings, on grounds that: there had been a significant interim period between the analogous proceedings; the expert could provide his opinion without resorting to confidential information; and the witness offered an undertaking with regard to privileged information of the defendant.

Order sought excluding plaintiff’s expert witness – was a witness for defendant insurance company in ongoing proceedings and in past proceedings - similar but not identical matters – five and a half years since expert witness’ involvement in analogous ongoing proceedings - no dispute with regard to duty of confidentiality – affidavit sworn where witness noted he had no documentation regarding other proceedings and had used no confidential information in preparing his expert report - undertaking offered to not disclose any confidential information - test to be applied is whether or not the expert witness would have been unable to avoid having resort to privileged material – avoidance possible here – five year gap – burden of proof on applicant to show that the expert will misuse confidential information – burden not discharged - cannot have a contractual clause which prevents a witness acting as witness against the party – contrary to public policy – in any event, insufficient evidence to imply that term into the contract - recognised duty of witness to provide objective information to the court – no breach of independence or duty - no breach of basic procedural fairness – no breach of access to justice – no order granted – witness directed to offer undertaking.

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