VHI wins appeal to exclude Moore McDowell as expert witness
Court of Appeal agrees previous work with VHI creates conflict of interest
The Court of Appeal ruled on Tuesday that the High Court erred in refusing an application by VHI to exclude Prof McDowell from acting as an expert witness for an opposing side in the case.
Prof McDowell, who previously had a retainer with the VHI, had, by agreeing to his engagement as an expert witness for The Limerick Private Ltd, the company behind plans for the private hospital, put himself into a position of “obvious conflict of interest”, Mr Justice Maurice Collins also said when giving the judgement of the three judge Court of Appeal.
Mr Justice Collins said The Limerick Private Limited and its director Shay Sweeney have long had plans to develop a private hospital in Limerick city. In 2006, it had first approached the VHI requesting it to approve the hospital and agree the cost of providing medical services to VHI members.
In 2014, after what appeared to have been a protracted process of negotiation, the VHI refused to approve cover, he said.
In 2015, The Limerick Private Ltd began High Court proceedings challenging the lawfulness of the refusal and seeking a declaration that it is entitled to have the hospital approved by the VHI. It further contends the VHI refusal is an alleged abuse by the VHI of an alleged position of dominance in the market. All the claims are denied by the VHI.
In October 2017, Prof McDowell was retained by The Limerick Private Ltd as an independent economic expert in the proceedings.
The VHI’s legal advisers first became aware of Prof McDowell’s retainer in November 2017 and objected on the basis the expert was and continued to be retained by the VHI as an economic expert in two other competition law actions brought against the VHI relating to private hospital cover.
In an affidavit, Prof McDowell said he was fully cognisant of his duties as an independent expert and had not relied on any information provided to him by or on behalf of the VHI in the preparation of a draft report.
Mr Justice Collins said none of that was contested and counsel for the VHI had made clear that Prof McDowell’s bona fides was not in question.
Prof McDowell could have declined to act as an expert witness for The Limerick Private Limited but he did not, the judge said. Mr Justice Collins said that was, in his view, an error of judgment on the part of the economist.
There was “nothing overbearing or inappropriate” about the VHI’s application to exclude Prof McDowell as an expert witness, Mr Justice Collins concluded..