The England and Wales Court of Appeal was called upon to consider this novel issue in Secretariat Consulting PTE Ltd & Ors v A Company [2021] EWCA Civ 6, available on BAILII.
At [3] the Court explained that no previous English case has addressed head-on a dispute in which there are two existing litigation support/expert retainers, which each client wished to maintain, relating to two live arbitrations, where what the respondent says is 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.
Secretariat Consulting Pte Ltd (“SCL”) was an entity within the Secretariat group, all of which provide litigation support services and act as delay and quantum experts in construction arbitrations. The facts of the matter require careful reading but the issues were distilled to the following:
Issue 1: Did SCL owe a fiduciary duty of loyalty to the respondent? The lead judgment by Coulson LJ (Males and Carr LLJ agreeing) concluded that “depending on the terms of the retainer, the relationship between a provider of litigation support services/expert, on the one hand, and his or her client on the other, may have one of the characteristics of a fiduciary relationship, namely a duty of loyalty or, to put it another way, a duty to avoid conflicts of interest. That is not contradicted by the expert’s obligations to the court. But, unlike the judge, I do not consider that it is necessary or appropriate to find the existence of a freestanding duty of loyalty in the present case.”
Issue 2: If not, did SCL owe a contractual duty to the respondent to avoid conflicts of interest? Yes, SCL owed the respondent a contractual duty to avoid any conflict of interest from May 2019 onwards.
Issue 3: If so, was that duty also owed to the respondent by other Secretariat entities? The conflict check having been carried out across the Secretariat group, the undertaking given by SCL in its retainer bound all the companies in the group. They were all providing the same form of litigation support/expert services.
Issue 4: If so, was there a conflict of interest as a result of SCL’s engagement in Arbitration 1 and SIUL’s subsequent engagement in Arbitration 2? Yes, there was a conflict of interest in this case.
Coulsen LJ went on however to say at [98] that none of the above should be taken as saying that the same expert cannot act both for and against the same client. Of course, an expert can do so. Large multinational companies often engage experts on one project and see them on the other side in relation to a dispute on another project. That is inevitable. But a conflict of interest is a matter of degree.