No injunction against expert who received party's privileged information

A recent High Court decision has re-emphasised the difficulty of challenging an opponent's expert on grounds of the expert's previous receipt of the applicant's privileged and confidential information: A Lloyd's Syndicate v X [2011] EWHC 2487 (Comm).

The cases show that mere receipt of a party's privileged information will not bar an expert from acting for an opponent in the same or a related dispute, nor will it put the onus on the expert to demonstrate that there is no risk of misuse of the information (in contrast with the position of solicitors or others who provide extensive litigation support services, as in Prince Jeffri Bolkiah v KPMG [1999] AC 222). The expert cannot however divulge the privileged information, and will not be permitted to act if it is likely that he or she will be unable to avoid having resort to the information in acting as the opponent's expert.

This decision illustrates that points and arguments put to an expert in testing his or her views on an issue may amount to privileged information, but receipt of such information will not necessarily prevent the expert giving evidence for an opponent on the same issue.

Background

The claimant sought an injunction to prevent the defendant from giving expert evidence in an arbitration between the claimant and a reinsurer (A) on the operation of a particular clause of the reinsurance policy (the Clause).

The defendant had been instructed by the claimant as its expert in a claim against another reinsurer (B) in the same reinsurance pool. The defendant's evidence in that dispute had not addressed the Clause, as he did not agree with the claimant's interpretation of the Clause. He had however considered B's expert evidence on the Clause, and had discussed his own and the claimant's views in some detail in a telephone call and a meeting. During those discussions, the claimant had tested the expert's views through questioning based on actual or hypothetical claims scenarios.

The claimant asked the arbitral tribunal to direct that the defendant should not give evidence for A. The tribunal declined, ruling that there was no impediment to the defendant providing such evidence.

The claimant applied to court for an injunction on the basis of the expert's previous receipt of the claimant's confidential and privileged information, namely the claimant's case in relation to the Clause and arguments for and against that case formulated by the claimant. The claimant said it was as if the defendant had been provided with the claimant's skeleton argument and counsel's notes for cross-examination, and in those circumstances the test set out in Prince Jefri Bolkiah applied so that an injunction should be granted unless the defendant could prove there was no risk of misuse.

Decision

The judge (Teare J) dismissed the claimant's application for an injunction. He agreed with the judgment of Mann J in Meat Corporation of Namibia v Dawn Meats (see post) that the strict test in Prince Jefri Bolkiah is not appropriate to an expert witness who is not providing extensive litigation support services akin to those typically provided by solicitors. Although the expert cannot divulge any confidential or privileged information received, the expert does not have the burden of showing that there is no risk that he would misuse the information (as is the case for solicitors or those who provide like services).

The judge also agreed with Mann J that the authorities demonstrate that "an expert should not be permitted to act where it was likely that the expert would be unable to avoid having resort to privileged material". Mann J also said the court would intervene where the use of privileged information was "inevitable", but Teare J said he believed this was meant to be an example of where the court would intervene, rather than laying down inevitability as a test.

Here the judge accepted that the factual and hypothetical scenarios and other arguments put to the defendant amounted to the claimant's privileged information. However, the defendant had no detailed recollection of the discussions, nor any notes of them, and the judge thought it was "improbable" that he would seek to construct answers to points which might be put to him in cross-examination based on those discussions. He was therefore not persuaded that it was likely that the defendant would misuse the privileged information, and therefore the injunction should not be granted.

The judge said that if he was wrong, and it was likely that the defendant would misuse the privileged information in that way, he still did not consider it appropriate to grant the injunction sought. The arbitration tribunal had itself ruled on the point, and the justice of the case did not require the court to interfere with the arbitration process. It was accepted that the claimant's arguments would be deployed in the arbitration. Accordingly, the judge said, the claimant's complaint was not that the defendant might divulge matters the claimant wished to keep confidential, but rather that it would lose the forensic advantage of being able to cross-examine the opponent's expert without that expert having advance notice of the questions to be put. The loss of such an advantage was not damage which would justify the grant of an injunction which would interfere with the tribunal's management of the arbitration.

Comment

Although this case, like previous decisions, demonstrates that receipt of a party's privileged information will not necessarily prevent an expert giving evidence for an opponent, it is clear that everything will depend on the facts of the particular case. Here the court's decision was influenced by the fact that the expert had received the information some two years previously and had no detailed recollection of the discussions. Accordingly, the court did not consider it likely that he would be unable to avoid having resort to the information in acting as the opponent's expert.

In circumstances where the privileged information was divulged to the expert more recently or where the expert has a clear recollection of it, the court's conclusion might well be different. The court might also be more likely to grant an injunction where the privileged information is of a particularly sensitive nature, but parties should avoid disclosing such information to their potential experts save to the extent necessary.