Court of Appeal rules on conflicts of interest for litigation experts

13/01/21

How do the rules on conflicts of interest affect litigation experts? 

The Court of Appeal (Coulson Males and Carr LJJ) has given judgment in Secretariat Consulting Pte Ltd v A Company. Secretariat Consulting, which is part of an international organisation providing expert witness services for litigation and arbitration, had been instructed to provide services to A in relation to delay claims in a construction arbitration.  Subsequently another company in its worldwide group, Secretariat International, was instructed to provide quantum services in a different arbitration arising from the same project where A was the adversary. It was accepted that information barriers prevented risk of disclosure of confidential information and the only issue was one of conflict. The judge had held that  Secretariat Consulting owed A the duties of a fiduciary and that duty extended to the entire Secretariat group, that duty was breached by acting against A, and granted an injunction preventing Secretariat International from acting in the second arbitration.

The Court of Appeal disagreed with the reasons given by the judge for granting the injunction. The majority held that no fiduciary duty was owed to A by either Secretariat company (Coulson LJ not deciding the point), recognising that this was an important point on which there was virtually no authority.   However, the contract of retainer contained a clause whereby Secretariat Consulting warranted they did not have and would not have a conflict of interest.  The Court of Appeal concluded that even though they had not found there was a conflict at law, the effect of this clause, construed in context, was to prevent Secretariat International acting in the second arbitration and dismissed the appeal on the basis of a respondents’ notice.

The judgment is here.