Court rejects claims over €5k-a-day witness

A €5,000-a-day fee paid to a medical consultant for giving evidence in court — which it was claimed was “egregiously excessive” — did not mean he lacked independence or impartiality, the Court of Appeal has found.

Assertions that an expert witness who is paid a larger fee than those in other cases is likely to be less independent must be backed up with expert evidence to that effect and can not be just “bald assertions”, the court said.

The court made the comments when dismissing an appeal yesterday brought on behalf of a teenage boy who claimed a €50,000 High Court award was inadequate compensation as a result of surgery which left him with a condition that caused bed wetting and post-traumatic stress.

During the High Court hearing in 2013, counsel for the boy challenged the €5,000 per day fee for a consultant neurologist’s attendance in court to give evidence on behalf of the State Claims Agency (SCA), which handled the case on behalf of the defendants, the HSE and a hospital surgeon.

As a result of the intervention by the judge hearing the case, the boy’s counsel claimed in the appeal against the High Court decision, the trial was unsatisfactory.

Counsel argued he was unable to carry out a proper cross-examination in the High Court to establish that the neurologist was not impartial. Counsel argued the “egregiously extravagant” €5,000-a-day fee was “wildly above” anything the SCA could have been expected to pay and was evidence of an “open cheque book” approach.

It also meant the neurologist could not be considered an independent witness but rather an advocate for the defendants. Such “extravagant” fees incited a witness to give partisan evidence, it was claimed.

The State side rejected those claims. Ms Justice Mary Irvine, on behalf of the three-judge Court of Appeal, also rejected the arguments.

She was satisfied the €50,000 award to the boy was reasonable and the appeals court should not interfere with it.