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Court of Appeal allows appeal from High Court, and grants order excluding an independent economist acting as an expert witness for the promoters of a private hospital in a competition law action against a private health insurer, where the economist had been retained by the insurer in similar cases that had not yet been determined, on the grounds that: (a) a conflict of interest arose in that, as acknowledged by counsel for the private hospital, the economist would not be in a position to continue to act for the insurer in the other actions; (b) the economist had had sight of confidential and privileged documents belonging to the insurer and, even if he gave an undertaking not to disclose it, there was a significant risk that information might be inadvertently used or disclosed; (c) the insurer was not guilty of delay in making the application; and (d) the High Court had applied the wrong test, such that the decision not to exclude the witness could not be 'saved'.
Collins J (nem diss): Application to exclude person from acting as expert witness - appeal from refusal to exclude - claim by promotors of private hospital against health insurer - challenge to lawfulness of refusal to approve cover - section 5 of the Competition Act 2002 - Article 102 TFEU - alleged abuse of dominant position - retention of independent economic expert - former lecturer - retention of expert by insurer in earlier proceedings - whether expert likely to be unable to avoid having recourse to privileged material - delay in bringing application - protection of confidential and privileged material - delay - jurisdiction of High Court judge.
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