Expert witnesses’ duty to the client to avoid conflicts of interest?

"A" Company v Secretariat Consulting & Secretariat International [2021] EWCA Civ6,

 

"A" Company v Secretariat Consulting & Secretariat International [2021] EWCA Civ6,

Background

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

Decided

The Court of Appeal Held:

  1. 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.
  2. The injunction was upheld.

Comment

  1. 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.
  2. 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.
  3. 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!

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