Munro v Wheeler

The plaintiffs, Munro and another, initiated defamation proceedings against Wheeler. They sought to rely on a medico-legal report from Dr Fukui, which was served 28 days before the hearing. However, the plaintiffs did not first obtain leave for the service of expert reports as required under UCPR r 31.19. The defendants sought an order preventing the plaintiffs from relying on the report, arguing that the failure to comply with UCPR r 31.19 was not merely an irregularity and that the plaintiffs had not satisfactorily explained why they did not seek leave promptly. The court was tasked with determining whether UCPR r 31.28(1)(c) allowed service of the report without leave, provided it was served 28 days before the hearing, and whether the failure to comply with UCPR r 31.19 was a mere irregularity or had prejudiced the defendants.

The court examined the provisions of UCPR r 31.19, which requires leave to serve an expert report, and UCPR r 31.28(1)(c), which deals with the service of expert reports by parties. The court found that UCPR r 31.28(1)(c) did not permit service without leave as long as the report was served 28 days before the hearing. It was held that failure to comply with UCPR r 31.19 was not a mere irregularity. The court also found that the plaintiffs had not satisfactorily explained why they did not seek leave promptly and that the defendants had been prejudiced by this failure. Consequently, the plaintiffs' application for leave was refused.

In light of the court's decision, the plaintiffs were not permitted to tender or otherwise rely upon the medical report of Dr Fukui filed on 8 February 2024. The court granted the defendants' application under UCPR r 31.19, effectively barring the plaintiffs from using the report in their defamation proceedings. This outcome highlights the importance of adhering to procedural requirements in litigation, particularly concerning the service of expert evidence, and the potential consequences of failing to do so.