Disallowing expert evidence

In Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd [2011] EWHC 474 (Ch), the High Court refused the claimant's challenge to the admissibility of the defendant's expert evidence on grounds of the expert's receipt of the claimant's privileged and confidential information and an alleged lack of independence. The claimant would however be entitled to challenge the degree of the expert's independence in cross-examination at trial.

Key points:

• A prospective expert's receipt of a party's confidential / privileged information will not in itself bar the expert from accepting instructions to act for the party's opponent in litigation.
• The question of whether an expert is disqualified due to lack of independence will depend on all the facts.
• A connection such as employment or consultancy will not necessarily prevent an expert acting, but may affect the weight the court attaches to his or her evidence.

Practical implications:

• A party may wish to limit the disclosure of confidential / privileged information to an expert witness to what is essential, particularly where it is not yet clear that the expert will be engaged.
• Experts may wish to make it clear during initial discussions with a prospective instructing party that they are not willing to receive any privileged information before being formally instructed, to avoid difficulties arising if they are subsequently approached by the opponent.
• Since an expert's connection with a party may affect the weight attached to his or her evidence, even if it does not disqualify the expert, it will normally be preferable to have an expert with no such connection.

Background

In a dispute relating to alleged breaches of an agency agreement, the claimant challenged the defendant's choice of "meat industry expert" on the grounds that:

• The expert had received privileged and confidential information of the claimant during initial discussions about a possible engagement as the claimant's expert, and therefore could not act for the defendant applying the principles in Prince Jefri Bolkiah v KPMG [1999] AC 222 relating to the protection of confidential information.
• The expert was not independent because of her engagement as a consultant for the defendant and because of her alleged involvement in some of the transactions criticised in the dispute.

The judge refused the application to disallow the expert's evidence on both grounds.

Receipt of privileged and confidential information

The claimant sought to rely on the Prince Jefri case, in which the court restrained a firm of accountants from acting for an adverse party where they had provided extensive litigation support services to the claimant and received highly confidential information in the course of their retainer. The House of Lords in that case held that the accountants were essentially occupying the same position as solicitors, and that the claimant should be protected from any real risk of disclosure of its confidential information to the adverse party.

In the present case, the judge said he did not think the strict requirements in Prince Jefri should be applied simply because the expert was given some privileged and confidential information. In Prince Jefri the House of Lords was protecting a quasi-solicitor/client relationship. In the present case, the relationship between the claimant and the expert was very different from that of solicitor and client; in fact, there was not even an engagement.

The judge accepted that the claimant's confidentiality and privilege had to be maintained, but was satisfied that it would be because:

• The expert had given an undertaking not to disclose any of the information she received (to the extent she could remember it in any case).
• Having reviewed the privileged material disclosed to the expert (at the invitation of the parties) the judge said that most of it would be irrelevant to the expert's functions as an expert, and indeed most of it would be "fundamentally uninteresting" to the defendant.
• To the extent it would be interesting (such as the claimant's view of the merits and approach to settlement) this was adequately covered by the undertaking.

The judge recognised, by reference to previous authority, that there might be cases where an expert who had received privileged information for one party should not be permitted to act for another because it was likely he or she would be unable to avoid having resort to the privileged material. It would all depend on the facts.

Alleged lack of independence

Whether an expert is disqualified from acting due to a connection with a party will depend on all the facts, and not on single "bright-line" considerations such as whether there is some sort of contractual relationship between them.

Since the status of employee did not automatically disqualify a person as an expert (as established in previous authority such as Field v Leeds City Council [1999] EWCA Civ 3013), a more limited consultancy arrangement could not do so either. In any event, the expert's consultancy work for the defendant was very limited and was confined to matters remote from the issues on which she would be asked to express her opinion.

The judge was however troubled by the allegations (which had emerged late in the case) that the expert had been involved in some of the transactions which were criticised in the case, and on which she would have to express a view. However, the facts were disputed, and the evidence so far presented was not sufficient to justify a ruling disqualifying the expert.

The judge therefore refused the application to disallow the expert evidence, but stated that this would not prevent the claimant challenging the degree of the expert's independence in cross-examination at trial (in particular in relation to her involvement in the relevant transactions where the claimant's allegations, if established, might seriously undermine her evidence).

The judge commented that if that were to happen and the defendant ended up without any strong expert evidence at trial, "it cannot assume that it would get an adjournment to fix that problem if it goes into a trial knowing that there is a problem".

Comments

This decision illustrates that receipt of a party's confidential / privileged information will not in itself bar an expert from accepting instructions to act for the party's opponent in litigation. The strict principles which apply to protect confidential information in the hands of a solicitor from any risk of the information being used against the client will not necessarily be applied to an expert, in the absence of a quasi-solicitor/client relationship.

The party's confidentiality / privilege does however have to be maintained. Where the expert would be unable to avoid making use of the privileged material in the new instruction, it would be appropriate to prevent the expert acting.

This decision also illustrates that where the court refuses a challenge to the admissibility of expert evidence based on an alleged lack of independence, this will not necessarily prevent a challenge to the degree of the expert's independence during cross-examination at trial. It may therefore be a risky course to adduce evidence from an expert who has any connection with the parties or the dispute that may call his or her independence into question.