Do Experts Owe A Duty Of Loyalty?

In A v B [2020] EWHC 809 (TCC), the Technology and Construction Court restrained three defendants from giving expert services in an ICC arbitration where one of them had also provided expert services to another party in a separate arbitration arising from the same project. In this article, we consider what the decision means, both for experts and for those appointing them.

Factual Background

The claimant in the High Court proceedings was the developer of a petrochemical plant (the "Developer"). It had contracts with various groups of companies for engineering, procurement and construction management services (the "EPCM Contractors"), and contracts with another contractor (the "Works Contractor") for construction works.

Disputes arose out of delays to the construction works, and the Works Contractor brought ICC arbitration proceedings ("the Works Arbitration") against the Developer. In that arbitration, the Works Contractor claimed additional costs incurred due to delay to its works, caused in part by the late release of construction drawings from the EPCM Contractors. The Developer's position was that if it was found liable to pay sums for delay to the Works Contractor, it would seek to recover those from the EPCM Contractors.

The Developer engaged the first defendant (a consulting firm in Asia) to provide expert services in the Works Arbitration. The parties entered into a confidentiality agreement and an engagement letter, and the first defendant provided expert services thereunder through a senior member of the team, 'K'.

Subsequently, the EPCM Contractors brought ICC arbitration proceedings against the Developer for sums due under the EPCM contracts ("the EPCM Arbitration"). The EPCM Contractors approached the three defendants (i.e. the same group of consultancy firms engaged by the Developer in the Works Arbitration) to provide expert services (outside of Asia) in quantum and delay in the EPCM Arbitration.

The defendants notified the EPCM Contractors that they were already engaged by the Developer (albeit acting through another office) in another dispute on the same project; and notified the Developer that the EPCM Contractors were seeking to appoint them in the EPCM Arbitration. The Developer considered this created a conflict of interest contrary to the terms of its engagement with the first defendant. Further correspondence ensued, but ultimately the second defendant company accepted the engagement and started work for the EPCM...