03 March 2021
"A" Company v Secretariat Consulting & Secretariat International  EWCA Civ6,
Secretariat Consulting and Secretariat International were both members of the Secretariat Group of companies, offering litigation support services. Company A hired Secretariat Consulting to provide an expert witness assistance in an arbitration on a major petrochemical works. Subsequently, Secretariat International accepted an appointment to act against Company A, in a separate arbitration by a different outfit, but concerning the same project.
Company A got an injunction to stop Secretariat International from acting against it, and the Secretariat companies appealed
The Court of Appeal Held:
- Secretariat International was in breach of an express contract term warranting that it had no current conflict of interest, and would not create one in the future.
- The injunction was upheld.
- The High Court had previously held that the expert witness/client relationship was fiduciary, and therefore there was an obligation to be loyal to the client. The CA rejected this, saying that the term “fiduciary” had potentially difficult implications.
- Disappointingly, the CA ducked the opportunity to clarify Experts’ implied professional duties to their clients by relying on the express contractual term, and over-ruling the earlier decision.
- The lesson of this case is that if a litigant wants to ensure that its expert does not take on conflicting interests, then it must put a clause in the contract!