Expert Witnesses Owe A Fiduciary Duty Of Loyalty To Clients

Published date08 January 2021
Subject MatterLitigation, Mediation & Arbitration, Arbitration & Dispute Resolution
Law FirmDuane Morris LLP
AuthorMr Vijay K. Bange

A Company v XYZ [2020] EWHC 809 (TCC)

Overview

  • The expert witness owed a fiduciary duty of loyalty, arising out of an engagement to provide expert witness services, advice and support in connection with an arbitration.
  • The court allowed the continuation of an existing interim injunction refraining the defendant consultancy expert practice from providing expert services to another party in the arbitration.

The Case

The matter before the court concerned an application by the claimant for continuation of an injunction restraining the defendant from acting as experts for a third party in ICC arbitration proceedings.

The claimant was the employer, and the developer of a petrochemical plant. Disputes arose between the claimant and a contractor. The contractor commenced ICC arbitration proceedings against the claimant, alleging that it had incurred additional costs by reason of delays to its works, including the late release of contract drawings (which were produced by a third party).

The claimant engaged the first defendant, a multi-jurisdictional and disciplinary practice providing a range of expert services to construction projects, on or around May 2019. In addition to the contract of engagement for expert services, the parties entered into a confidentiality agreement and a non-disclosure agreement. The claimant also made clear that expert services were to be provided by a specific expert from the defendant group.

The third party that produced the contract drawings commenced an arbitration against the claimant in summer 2019. This third party approached the defendants in October 2019 to provide expert witness services for the third party. The defendants had given assurances about confidentiality.

The entity engaged to provide expert witness services to the third party was a different entity to that engaged by the claimant in the first arbitration, however, the two entities both formed part of a larger group referred to as 'the defendant group', owned in part by a common holding company. The claimant objected to the engagement of the defendant by the third party on the basis that there was a clear conflict. The claimant did not take issue with the point of confidentiality.

The interesting issue before the court was whether independent experts, who are engaged by a client to provide advice and support in arbitration or legal proceedings, in addition to expert evidence, owe a fiduciary duty of loyalty to their clients.

The claimant's case was that the...

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