Expert witness and extrinsic evidence-publicans v FBD case clarifies important legal issues

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Apart from the substantive issue in the publicans’ case against FBD in the case involving the Leopardstown Inn, Sinnotts, Lemon and Duke, Sean’s bar, there are some other valuable lessons to be gleaned from the High Court consideration of the case.

Contract law rule concerning extrinsic evidence

There is a contract law rule concerning extrinsic evidence. The rule is that extrinsic evidence cannot be used to add to or take away from the written terms of a contract. Therefore, the conduct of the parties after entering into a contract cannot be considered in any consideration of the terms of the contract.

In this case the publicans wished to introduce into evidence a folder of internal FBD communications which showed FBD expressing concern about a potential exposure to Covid 19 closure claims. 

FBD naturally argued that this evidence could not be adduced in the case and relied on the extrinsic evidence rule.

The High Court held, however, that the rule against extrinsic evidence did not prohibit the introduction of this evidence. This was on the grounds that the ‘business efficacy’ argument put forward by FBD who had argued the efficacy test was one which courts will often use to imply terms into a contract to give the contract the business efficacy the parties intended.

When FBD lost this argument they decided to abandon the business efficacy argument they were advancing and the folder containing the internal discussions within FBD was not admitted into evidence. 

Expert witness evidence

FBD intended introducing into evidence reports prepared by three insurance experts which was to be ‘expert evidence’. The publicans objected to this on two grounds:

  1. The evidence was inadmissible
  2. If it was admissible it should be excluded on the basis of the Rules of the Superior Courts which provided that any expert evidence should be restricted to what is reasonably required to determine the issues in the case

The High Court reviewed the English case law in deciding the issue and held that the burden of proof was on FBD to show:

  • The evidence was admissible and 
  • Was reasonably required

In looking at the question of what is reasonably required the High Court looked at British Airways v Spencer [2015] EWHC 2477, an English decision. This decision used an approach which looked at these questions:

  • Is the expert evidence necessary to determine the issues
  • Would the court be able to determine the issue without it, even if it was helpful and of assistance
  • If it was of assistance would it be reasonably required to resolve the issues.

On this basis the High Court allowed the evidence of one expert report, admitted a portion of one report, and excluded a third expert report in its entirety.

This post should be read in conjunction with 5 Lessons from the successful High Court publicans’ insurance claim case against FBD over Covid 19 losses

Final word

This case is not finalised and consigned to the dusty annals of legal history just yet. The question of quantum of damages for the successful publicans and legal costs have yet to be determined.