The independence of an Expert

[2011] EWHC 474 (Ch) TEDR Volume: 16 Issue: 1

The Facts

This involved an application by the Claimant, Meat Co against the Defendant, Dawn, to oppose an application by the Defendant to call a new expert witness. They wished permission to be refused on the basis that proposed expert was in possession of confidential and privileged information concerning the Claimant which they said prevented her from acting or continuing to act for the Defendant and because they said she lacked the necessary independence of an expert. It was agreed that the expert was a retired meat trader and had the appropriate qualifications to be a suitable expert in the case. That was doubly so given that both sides had tried to instruct her in the matter. The Claimant tried first followed by the Defendant. The Claimant’s managing director (who used to work for the Defendant) had contacted the expert in May 2010. A conversation took place between the pair and, at the time, she said she was expecting to hear from the Defendant with a view to engagement as a consultant. There were also several e-mails between the pair. Full details of the information shared between them were not made available within the Judgement but made available to the Judge to assist him in making his decision.

 Issues

1. Did the fact the proposed expert possessed privileged and confidential information about the other party disqualify her from acting as an expert?

2. Did the proposed Expert lack independence?

The Decision

Privilege and confidentiality

It was not contested that the expert had been given some privileged and confidential information. However, His Lordship did not agree with the Claimant that the expert ought to be treated in the same way as perhaps a solicitor and client would be treated if there had been a previous engagement that had Lordship’s conclusion was that the expert had only received the information in the course of enquiries as to whether she would “that does not rob it of its confidential quality, but it does mean that the relationship between her and Meat Co is very different from that of an engaged solicitor and his client”. He observed that to some extent the information had been forced upon her and whilst she could have refused to receive the information it was not appropriate to equate her with the sort of relationship of a solicitor and client. Overall His Lordship considered that, whilst confidentiality and privilege must be maintained, an undertaking by the expert she would maintain privilege and confidentiality would be sufficient. Overall His Lordship did not think that her deciding to act for the Defendant meant that she would betray confidences she had received and that it was a matter for her to decide what to do.

Further, having reviewed the e-mails and privileged information he considered that much of it would be uninteresting to the Defendant in any event and, as observed above, the undertaking would prevent her disclosing it.

Overall whilst previous cases have suggested that the practical approach was for the expert to refuse to act for both sides thus leaving the solicitors with the sensible course of action of seeking alternative experts, that did not automatically follow and the expert was not automatically disqualified. Overall therefore Mr Justice Mann considered that the expert was not disqualified from acting as an expert by virtue of her receipt of privileged and confidential information in this particular case.

Lack of independence

The second limb of objection was that the expert lacked the necessary independence. The Court set out the principles which were conveniently set out by Mr. Justice Nelson in Armchair Passenger Transport Limited v Helical Bar PLC [2003] EWHC 367 as follows:

i) It is always desirable that experts should have no actual or apparent interest in the outcome of proceedings.

ii) The existence of such an interest, whether as an employee of the parties or otherwise, does not automatically render the evidence of that proposed expert inadmissible. It is the nature and extent of the interest or connection that matters, not the mere fact of the interest or connection.

iii) Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.

iv) The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether or not an expert should be permitted to give evidence.

v) The questions which have to be determined [are] whether (i) that the person has expertise; and (ii) he or she is aware of their primary duty to the Court if they give expert evidence and willing and able despite the interest or connection with the litigation or party thereto, to carry out that duty.

vi) The judge will have to weigh the alternative choices openly if the expert’s evidence is excluded, having regard to the overriding objective of the CPR.

vii) If the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence.

His Lordship also applied one qualification of his own in that he was of the view that sometimes it would not be possible to determine with any clarity whether there was any disqualifying connection between the expert and the party at an interlocutory stage. Whilst of course it is desirable to do so, he would not rule out the prospect of having to decide the point at trial if necessary. Overall, the conclusion is that whether or not an expert is disqualified by reason of a connection with a party will depend upon the facts of the case and not on a single issue such as whether there is some contractual relationship between the two. The status of being an employee does not automatically disqualify a person acting as an expert and therefore it is difficult to see why the status of a consultant with limited functions would either.

Comment

Clearly, issues such as the above can be raised by the legal representatives at the interlocutory stage in the case. However, they are also issues that can be raised in cross examination during the trial for determination then. It may therefore be thought by experts that, professionally, they wish to decline instructions on the basis that there may be a conflict of interest or that it may result in difficult cross examination at trial even if ultimately there is no such conflict.