High Court Interim Judgment on Expert Witness Unavailability

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  ER Travel Ltd v Dublin Airport Authority AKA DAA PLC (Approved) [2026] IEHC 172 (19 March 2026)

URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC172.html
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[2026] IEHC 172 | | |
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[2026] IEHC 172

[2019 2944 P]

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THE HIGH COURT

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ER TRAVEL LIMITED

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Plaintiff

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DUBLIN AIRPORT AUTHORITY AKA DAA PLC

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Defendant

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INTERIM JUDGMENT of Mr Justice Max Barrett delivered on 19 th March 2026.

1. This is a short interim judgment that addresses an issue that has arisen during the course of these proceedings. An expert witness (an economist) has unexpectedly become unavailable to give oral testimony. The question arises how best to proceed following on this unfortunate development.

2. By way of preliminary observation, I note that I have already made an order under s.27 of the Civil Law (Miscellaneous Provisions) Act 2008 prohibiting the publication or broadcast of any matter relating to the within proceedings which would, or would be likely to, identify the just-mentioned expert witness as a person having a particular medical condition.

ER Travel's Submissions

3. Counsel for ER Travel submitted that an adjournment should be granted to allow for the fresh instruction of an economist. He emphasised that the present difficulty had arisen suddenly and through no fault of the plaintiff. It would therefore be wrong to attribute blame to the plaintiff.

4. He noted that the defendant had indicated an intention to rely on the decision in Royal Mail v. Ofcom [2019] CAT 19, where the Competition Appeal Tribunal declined to adjourn proceedings following the unavailability of an expert who had already participated extensively in the expert process. Counsel submitted that the facts in that case were materially different to those presenting here. In Royal Mail, the expert in question had produced sequenced reports and had engaged in a more extensive expert process before becoming unavailable. Here, by contrast, the plaintiff's principal expert had produced only one substantive report and had not had any proper opportunity to address in oral evidence the criticisms made of that report. Counsel submitted that the Joint Expert Statement did not cure that difficulty.

5. Counsel stressed that the plaintiff bears the burden of proof. In those circumstances, he submitted that the inability to call its principal competition expert to give oral evidence was a matter of real prejudice. The defendant's waiver of cross-examination did not meet that difficulty. The plaintiff would still be deprived of the opportunity to lead viva voce expert evidence in support of its case and to have its expert explain and defend his analysis.

6. Counsel submitted that, in a competition case, the economist's role is central. Referring to Sweeney v. VHI [2021] IESC 58 **, he submitted that competition claims are shaped in significant measure by expert economic analysis. For that reason, fairness required that the plaintiff be permitted to put forward a replacement expert, rather than being confined to the written report of an expert who could not be called.

7. As to the defendant's argument that the instruction of a new expert would produce disruption, counsel submitted that this was overstated. The pleaded case remained the pleaded case. While it was theoretically possible that a new expert might suggest a different approach, that was, he submitted, unlikely; and, if such an issue did arise, it would be a matter for case management by me, with appropriate costs consequences. He observed that the earlier replacement of an expert in the proceedings had not produced the kind of procedural disorder now posited by the defendant as likely.

8. Counsel accepted that some practical issues would arise as to the basis upon which a new expert should be instructed, but submitted that these were manageable. They could be addressed between the parties and, if necessary, determined by me. He further submitted that any need to revisit factual evidence would likely be limited.

9. On timing, counsel submitted that the position here was also distinguishable from Royal Mail. This was not a case of indefinite adjournment. The plaintiff was already taking steps to identify a replacement expert, likely from outside Ireland. He anticipated that matters could be reviewed by early March, with a resumed hearing thereafter. In that regard, counsel submitted that the likely delay was measured in months, and was not such as to outweigh the unfairness to the plaintiff of being required to proceed without its principal expert.

10. In the result, counsel submitted that the balance of justice favoured granting the adjournment. The plaintiff was entitled to a fair opportunity to prove its case, and, in a competition case of this kind, that required that it be allowed to call a replacement expert.

The DAA's Submissions

11. Counsel for the defendant accepted that the circumstances giving rise to the present difficulty are unfortunate. However, he emphasised that the situation has significant implications for litigation that has already been ongoing for almost seven years and concerns serious allegations of abuse of dominance and concerted practice.

12. Counsel submitted that the proceedings ought to be brought to a conclusion in the most expeditious and cost-effective manner consistent with the proper administration of justice. Counsel observed that a substantial portion of the delay in bringing the matter to trial was attributable to the plaintiff (this is disputed), and that I should be slow to permit further delay.

13. Counsel submitted that two possible courses arise.

14. The first would be to adjourn the proceedings to allow the plaintiff to instruct a new expert and to produce further expert reports and a revised joint experts' statement before the trial resumes. It was submitted that such a course would give rise to significant complexity and uncertainty. A newly instructed expert might adopt a different approach to the economic analysis underpinning the case, including the definition of the relevant market or the theory of abuse. This could potentially lead to applications to amend pleadings, seek additional discovery, introduce further expert evidence, or recall factual witnesses. In the context of competition litigation, where expert economic analysis plays a central role in shaping the case, counsel submitted that the instruction of a new expert at this stage would risk substantial disruption and delay.

15. The second, alternative, course would be to proceed with the trial on the basis of the expert reports already before the Court. Counsel indicated that, in those circumstances, the defendant would waive its entitlement to cross-examine the plaintiff's expert witness. It was submitted that this approach would avoid the delay and expense associated with the instruction of a new expert and would allow the proceedings to continue within the existing evidential framework.

16. Counsel accepted that the absence of oral evidence from the plaintiff's expert may give rise to some degree of prejudice to the plaintiff. However, it was submitted that any such prejudice is mitigated by the defendant's waiver of its right to cross-examination, which was said to be a significant procedural entitlement linked to the rights of defence. Counsel further submitted that the plaintiff's expert had already addressed criticisms of his analysis in the joint experts' statement, which sets out in detail the points of agreement and disagreement between the experts.

17. Counsel submitted that general case-management principles weigh against the granting of an adjournment. He contended that adjournments ought to be avoided unless sufficient reason is established and the interests of justice require it. He submitted that factors such as the complexity of the proceedings, the conduct of the parties, previous delays, and the need to ensure that a trial is completed within a reasonable time all favour the continuation of the hearing. I respectfully accept these propositions to be correct.

18. Counsel for the DAA submitted that, although neither course is entirely satisfactory, the balance of justice favours proceeding with the trial on the basis of the existing expert reports, with the defendant waiving its right to cross-examine the plaintiff's expert witness. Counsel indicated that this course would allow the hearing to resume in the short terms and proceed to completion within a relatively short period.

19. Counsel also indicated that, if the Court were to grant an adjournment and thereby require the defendant to incur additional costs, the defendant would seek liberty at a later stage to revisit the question of security for costs and any wasted costs arising from the adjournment.

Conclusions

20. The key issue before me is therefore whether the interests of justice favour granting an adjournment to permit the instruction of a replacement expert or whether the trial should proceed on the basis of the existing expert materials. There are, it seems to me, at least five reasons why the position canvassed before me by the DAA should be favoured:

i. Duration and stage of the proceedings. These proceedings have already been ongoing for almost seven years and the trial itself is well advanced. In those circumstances I must attach weight to the orderly continuation and completion of the hearing without further interruption.

ii. Potential disruption arising from a new expert. The course proposed by ER Travel would require the instruction of a new economist and the preparation of further expert materials. In a competition case of this kind, it is not difficult to see how the involvement of a new expert might give rise to additional procedural issues touching on pleadings, discovery, or the scope of expert evidence, and potentially require aspects of the evidential record to be revisited.

iii. Existing expert material before the Court. I already have before me the written expert reports together with the Joint Expert Statement identifying the areas of agreement and disagreement between the economists.

iv. Mitigation of prejudice to the plaintiff. The DAA has indicated a willingness to waive cross-examination of the unavailable expert, which goes a considerable distance towards mitigating the prejudice that might otherwise arise from the absence of oral testimony.

v. Case-management considerations. Proceeding on the basis of the material already before me avoids the delay and additional expense that would inevitably attend the instruction and integration of a new expert and is consistent with modern case-management principles favouring the completion of trials where that course is practicable and fair.

21. Taken together, those considerations point strongly in favour of proceeding with the trial on the basis of the expert material already before me rather than interrupting the proceedings to permit the instruction of a replacement economist. That is not to minimise the difficulty faced by ER Travel arising from the unavailability of its expert. I accept that what has occurred is both unfortunate and was entirely outside ER Travel's control. However, when the matter is viewed in the round, the prejudice identified by ER Travel does not, it seems to me, outweigh the countervailing considerations that favour allowing the trial to continue on the basis canvassed for by the DAA.

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URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC172.html