In Secretariat Consulting PTE Ltd & Ors v A Company [2021] EWCA Civ 6 (11 January 2021), a firm of expert witnesses appealed a ruling by Ms Justice O’Farrell that they could not act for two different clients in related arbitration.

The Court of Appeal affirmed the decision, but held that the duty was contractual rather than fiduciary. As Lord Justice Males commented:

Save perhaps in circumstances far removed from the present case, an expert witness is not a fiduciary and does not owe fiduciary duties to his client. To say this, however, does not provide an answer to this appeal and does not tell us anything about the duties regarding conflicts of interest to which an expert may be subject. A professional expert witness offers his services in return for payment and the relationship between the expert and his client is essentially contractual. It is therefore necessary to focus on the incidents of that relationship, concentrating on the terms of the expert’s retainer and the role which he is required and expected to perform. In this case the contract by which the expert was engaged contained an express term dealing with conflicts of interest. It is therefore unnecessary to consider what the position may be if an expert is engaged without anything at all being said about conflicts. That would be unusual nowadays in any substantial commercial litigation or arbitration.”

See here for judgment.