New High Court Practice Directions reshape expert evidence in clinical negligence claims
Effective from 28 April 2025, the High Court has issued two significant Practice Directions, HC131 and HC132, which represent a substantial change in the handling of clinical negligence cases in Ireland, particularly concerning expert evidence. These directions aim to instil greater discipline, promote earlier clarity and potentially result in shorter trials for such complex cases.
Clinical negligence cases are complex, often involving detailed causation and care standards requiring expert input from various medical disciplines. Procedural rules for expert evidence are criticised for fragmentation and delays. The implementation of Practice Directions HC131 and HC132 signals a move towards a more structured and court-controlled approach to expert testimony in clinical claims.
Key features of the Practice Directions
Early identification of expert issues
Under Practice Direction HC132, parties are now required to clearly identify the expert issues in dispute at an early stage. Courts expect litigants to confirm whether expert reports are necessary and to specify the disciplines involved. This aligns with the court’s authority to manage proceedings efficiently, as outlined in Order 36 of the Rules of the Superior Courts.
Court control over number and scope of experts
The Practice Directions reinforce the principle that the court—not the parties—will determine the necessity and appropriateness of expert evidence. This measure aims to reduce the risk of “expert stacking,” where parties present multiple reports on overlapping issues. Order 39, Rule 58 of the Rules of the Superior Courts stipulates that expert evidence shall be restricted to what is reasonably required to enable the court to determine the proceedings.
Mandatory exchange of reports
Practice Direction HC131 introduces stricter timelines for the mutual exchange of expert reports. The court may penalise parties who delay or withhold expert evidence, particularly if such actions lead to adjournments or inefficiencies. This approach is consistent with the court’s case management powers under Order 36.
Joint expert meetings and reports
The courts will increasingly direct that opposing experts meet to discuss their views and produce a joint report outlining points of agreement and disagreement. This practice promotes greater focus at trial and can significantly narrow the issues in dispute. While not explicitly mandated in the Rules of the Superior Courts, this approach aligns with international best practices and the court’s inherent jurisdiction to manage proceedings effectively.
Declarations of independence
Experts must formally declare that their primary duty is to the court, not the instructing party. This requirement reinforces principles already recognized in case law and is now formalised in procedural terms. Order 39, Rule 57 of the Rules of the Superior Courts states: “It is the duty of an expert to assist the court as to matters within his or her field of expertise. This duty overrides any obligation to any party paying the fee of the expert.”
Sanctions for non-compliance
Perhaps most significantly, the Practice Directions introduce tangible consequences for procedural breaches. Failure to comply with directions relating to expert evidence may result in the exclusion of the expert, adjournment of proceedings, or costs orders against the defaulting party. These sanctions underscore the court’s commitment to efficient case management.
Expected effects on clinical claims
- Earlier Expert Engagement
Practitioners will need to engage medical experts at an earlier stage in proceedings. While this may increase initial costs and workload, it is likely to lead to better case filtering, potentially discouraging speculative claims and unfounded defences. - Greater procedural efficiency
By clarifying timelines and reducing duplication, the Practice Directions are expected to result in more efficient hearings. Joint expert reports will help judges focus on the real areas of dispute and minimise unnecessary technical arguments. - Cultural shift in expert roles
Declarations of independence and joint reports may encourage a shift in culture from “hired gun” expert testimony to a more neutral, truth-seeking process. Experts will need to be prepared for cross-examination not only regarding their opinion but also their impartiality. The Court of Appeal in Duffy v McGee [2022] IECA 254 highlighted that an expert’s primary duty is to the court, which includes providing an objective opinion. - Increased court involvement
The High Court is adopting a more managerial role in clinical litigation. Case management conferences will increasingly become the forum in which expert issues are ventilated and resolved, reducing surprises and ensuring fairness.
Challenges
There will inevitably be initial challenges. Certain experts might resist integrated reporting or misconstrue their evolving role. Courts must balance procedural efficiency with fairness, especially in intricate or borderline cases where multiple expert opinions may be genuinely required. Additionally, smaller firms or sole practitioners might find the increased initial burden of engaging and overseeing expert contributions early in the case lifecycle challenging.
The new Practice Directions effective from 28 April 2025 introduce changes to the procedural landscape of clinical claims. The implementation will require adjustments from lawyers and medical experts to streamline litigation, reduce costs, and improve judicial clarity.
