Expert witnesses, fiduciary duties and the terms of their retainers

In Secretariat Consulting Pte Ltd v A Company [2021] EWCA Civ 6, the Court of Appeal dismissed an appeal from the decision of O’Farrell J ([2020] EWHC 809 (TCC), [2020] BLR 433, on which see our May 2020 issue pp 9-11) and confirmed that the claimant was entitled to an injunction to restrain the defendants from acting as experts for a third party in connection with related arbitration proceedings which had been commenced by the third party against the claimant. The conclusion of the Court of Appeal rested on an interpretation of the terms of the retainer between the first defendant and the claimant. The terms of the retainer imposed on the first defendant a contractual duty to avoid a conflict of interest for the duration of the retainer (an undertaking which was held to have been given on behalf of all members of the corporate group of which the claimant was a member). The duty was therefore not derived from a universal proposition that an expert owes a fiduciary duty to his or her client. The Court of Appeal was, however, careful to point out that a fiduciary duty can be owed by an expert to his or her client and in particular the court rejected the submission that the duty owed by an expert to the court had the effect of negating the possible existence of a fiduciary duty owed by the expert to the client. That said, in future cases it is more likely that the expert’s duty to avoid a conflict of interest will be found in the terms of the expert’s retainer rather than via the imposition by the court of a fiduciary duty.