New Appeal: Does the payment of excessive fees to expert witnesses raise a perception of bias?

In this determination, O’Leary v Mercy University Hospital Cork Limited & Anor, the Supreme Court granted O’Leary leave to appeal on the question of whether the payment of large fees to expert witnesses created a conflict of interest and a perception of bias.

 

Background

O’Leary was unsuccessful in plenary proceedings for medical negligence and a claim not to have given informed consent to the procedure undertaken against the defendants (MUHC). The Court of Appeal upheld the High Court’s decision. In the process of taxation of costs it came to O’Leary’s attention that MUHC had paid €27,230 to one medical expert witness and €19,870 to another.

O’Leary sought leave of the Supreme Court to appeal the decision of the Court of Appeal on the issues of negligence and informed consent. But O’Leary raised a third issue, alleging that the fees paid by MUHC to the two expert witnesses created a conflict of interest and thereby breached the right to a fair trial guaranteed by Article 40.3 of the Constitution and Article 6.1 and 13 of the ECHR.

The Court determined that O’Leary had not reached the constitutional threshold for an appeal on the issues of negligence and consent but had reached that threshold on the issue of conflict of interest and a perception of bias.

The Court stated, however, that the question may arise during case management as to whether plenary proceedings before the High Court is a more appropriate means for the case to proceed.

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