In a recent decision by the High Court of England and Wales, it was concluded that an expert witness had a fiduciary duty to the client, independent of the duty to the court.
In A v B [2020] EWHC 809 (TCC) (03 April 2020), the expert had agreed to provide a report and advice to one party to international arbitration, but later agreed to provide services to another party in related arbitration. The client in the original arbitration sought an injunction in the London High Court to restrain the second retainer.
One of the more unusual statements in the case law on expert evidence is that of Lord Denning in Harmony Shipping, who said, baldly: “There is no property in a witness.” He allowed a defendant to call a witness who had previously advised the plaintiff.
In the recent case, it was held: “In this case, the first defendant was engaged to provide expert services for the claimant in connection with the Works Package Arbitration. The first defendant was instructed to provide an independent expert report and to comply with the duties set out in the CIArb Expert Witness Protocol as part of the engagement. However, it was also engaged to provide extensive advice and support for the claimant throughout the arbitration proceedings, as explained by S in his witness evidence. In those circumstances a clear relationship of trust and confidence arose, such as to give rise to a fiduciary duty of loyalty.”
Mrs Justice O’Farrell continued: “The first defendant has been advising and assisting the claimant in the formulation and presentation of its defence to the contractor’s claims in the Works Package Arbitration, including the provision of advice, analysis and opinions as to the cause of delays to the Project. In the EPCM Arbitration, the claimant seeks to pass on to the third party any claims arising from late provision of the IFC drawings. The arbitrations are concerned with the same delays and there is a significant overlap in the issues. There is plainly a conflict of interest for the defendants in acting for the claimant in the Works Package Arbitration and against the claimant in the EPCM Arbitration.“
The court granted the injunction sought.
See here for the full judgment.
