A Lloyd's Syndicate v X

An expert who has previously assisted one party may be restrained from acting for an opponent where there is a likely risk of misuse of confidential or privileged information. The stringent burden requiring the expert to show that there is no such risk applies to solicitors and providers of extensive litigation support, but does not automatically apply to an expert engaged to express an opinion on a clause. The court must assess the evidence realistically, including the expert’s recollection and the nature of the information received. A claimed loss of forensic advantage is insufficient, particularly where the arguments will be deployed openly in the arbitration and an injunction would interfere with the tribunal’s management of its proceedings.

The claimant, a Lloyd’s syndicate, applied urgently to restrain an expert from giving evidence for a reinsurer in an arbitration. The expert had previously assisted the claimant in a related arbitration and had discussed the construction of the same interlocking clause with the claimant and its solicitors. He later accepted instructions from the reinsurer and produced a report supporting the interpretation which he had expressed earlier.

The claimant alleged misuse of privileged and confidential information. The arbitral tribunal had ruled that expert evidence could be given. The central issues were the applicable burden of proof, whether misuse was likely, and whether the court should intervene in the arbitration.

1. The application was dismissed. The claimant had not shown that it was likely that the expert would misuse privileged or confidential information.
2. The approach in Prince Jeffri Bolkiah v KPMG [1999] AC 222, under which a solicitor or provider of extensive litigation support must show that there is no risk of misuse, was not automatically applicable to an expert engaged to provide an opinion on the meaning of a clause. The expert’s role was materially narrower than the extensive litigation support in that case.
3. Following the approach indicated by Harmony Shipping v Saudi Europe Line [1979] 1 WLR 1380 and discussed in Meat Corporation of Namibia Limited v Dawn Meats (UK) Limited [2011] EWHC 474 (Ch), the expert could not disclose confidential or privileged information, but the burden was not on him to prove that there was no risk of misuse. The relevant question was whether misuse was likely.
4. The evidence did not establish likely misuse. The expert had no detailed recollection of the earlier scenarios or arguments, had not read the attendance note, and said that the information he recalled had not affected his opinion or been disclosed.
5. Even if likely misuse had been shown, the injunction would not have been granted. The tribunal had considered the objection in principle, the claimant’s arguments would be deployed in the arbitration, and loss of the forensic advantage of cross-examining without advance notice was not damage justifying interference with the tribunal’s management of the arbitration.

First-instance application in the Commercial Court. The judgment does not state any subsequent appellate decision.