Do Experts Owe A Fiduciary Duty To Clients?

• Published date: 02 February 2021
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Gowling WLG
• Author: Mr Gordon Bell, Christopher Richards and Mike Stewart

The courts have long recognised that certain professionals owe their client a fiduciary duty of loyalty - but does that extend to experts in litigation and arbitration? And what is the extent of an expert's duty to avoid conflicts of interest?

We previously reported on A v B [2020] EWHC 809 (TCC) - a case in which the Technology and Construction Court found an expert owed a fiduciary duty of loyalty to his or her client, and restrained a group of delay and quantum experts from acting both for and against a party in two separate arbitrations arising out of the same project. The experts appealed that decision.

In this article, we consider the Court of Appeal's resulting judgment in Secretariat Consulting PTE Ltd & Ors v A Company [2021] EWCA Civ 6.

Background and High Court decision

For more detailed factual background to the dispute, and coverage of the first instance decision, please see our earlier article - Do experts owe a duty of loyalty? (High Court decision).

To summarise, in the Technology and Construction Court, the judge found that a company providing litigation support and expert services (now revealed in this Court of Appeal decision to be Secretariat Consulting Pte Ltd ("SCL")) owed its client a fiduciary duty of loyalty. She held that this in turn meant that other companies in the Secretariat group, which provided similar services, could not act against this client in another arbitration arising out of the same project and concerned with the same or similar subject matter.

As Coulson LJ noted in the leading judgment in the Court of Appeal, "this was the first time in the English jurisdiction that an expert had been found to owe a fiduciary duty to its client". "No [previous] English case has addressed head-on a dispute in which... the same expert organisation will be supporting, advising and giving evidence for and against the same client about the same project and the same or similar subject matter."

Court of Appeal decision

On appeal, Secretariat raised four issues. We deal with the Court of Appeal's findings on each issue below.

Issue 1: Did SCL owe a fiduciary duty of loyalty to the respondent?

All three judgments in the Court of Appeal acknowledge that experts owe an overriding duty to the court or tribunal - but, as explained in Jones v Kaney [2011] UKSC 13, that is not inconsistent with a duty of loyalty to a client. Indeed, the judges expressed the view that it is typically in the client's interest that the expert's evidence is (and...