Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd

An expert is not automatically disqualified because, during preliminary discussions about acting, the expert received confidential or privileged information from the opposing party. The strict approach in Prince Jefri Bolkiah v KPMG [1999] AC 222 is directed principally to solicitor or quasi-solicitor relationships and does not apply mechanistically to every expert consultation. The court should intervene where use of privileged material is inevitable, but an undertaking and the practical irrelevance of the information may adequately protect confidentiality.

Expert independence is assessed as a matter of fact and degree. Employment, consultancy, contact with the instructing party, or a connection with a witness does not automatically render evidence inadmissible. An interlocutory exclusion application succeeds only where the evidence demonstrates at that stage that the expert is not independent. Remaining concerns may be tested in cross-examination.

The claimant challenged the defendant’s proposed meat-industry expert, Mrs Burt-Thwaites. She had previously discussed acting for the claimant and had received confidential and privileged information during those discussions, although no concluded retainer was established. She later agreed to act for the defendant and gave an undertaking not to disclose the earlier communications.

The claimant also relied on her paid consultancy and sponsorship arrangements with the defendant, her contact with a proposed witness, the circumstances in which she had changed sides, and an alleged involvement in transactions relevant to the claim. The application sought to prevent her giving expert evidence and to prevent her seeing a confidential customer schedule. The issues were whether privilege and confidentiality required her disqualification, whether her connections compromised her independence, and whether the disputed factual matters could properly be resolved before trial.

1. Privilege and confidentiality. The application of Prince Jefri Bolkiah v KPMG [1999] AC 222 depends on the nature of the relationship in which the information was obtained. That case concerned a quasi-solicitor relationship involving extensive litigation-support services and highly confidential information. Receipt of privileged information alone does not place an expert in the same position as a solicitor or litigation-support accountant.
2. The claimant’s communications with Mrs Burt-Thwaites arose while she was considering whether to act. She was not engaged to provide services and had no binding retainer. The strict Prince Jefri Bolkiah test therefore did not apply. The confidentiality and privilege remained protected by her undertaking. The information was largely irrelevant to her expert functions and of no practical interest to the defendant’s litigation team.
3. Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 supported the conclusion that there is no property in an expert witness. Privileged communications must not be disclosed, but that principle does not automatically prevent an expert from acting for another party. Where resort to privileged material is inevitable, exclusion may be necessary, as illustrated by R v Davies [2002] EWCA Crim 85 and Sage v Feiven [2002] CLY 430. That was not the present case.
4. Independence. Applying the principles identified in Armchair Passenger Transport Ltd v Helical Bar plc [2003] EWHC 367 and Gallaher International Ltd v Tlais Enterprises Ltd [2007] EWHC 464 (Comm), the question is one of fact and degree. The expert’s expertise, primary duty to the court, willingness and ability to perform that duty, the nature and extent of any interest, and the available alternatives must be considered. Apparent bias is not the applicable test.
5. The defendant’s limited and occasional consultancy arrangement did not compromise independence. Neither liaison with a witness, the previous discussions with the claimant, the change of position, nor delayed disclosure of the proposed appointment established disqualifying dependence. The alleged involvement in the Chitty Foods transactions was potentially more serious, but the underlying facts were disputed and could not be resolved on the interlocutory evidence.
6. The court could not exclude the expert merely because a disputed allegation might later undermine her evidence. The claimant remained entitled to investigate the issue at trial and challenge her independence in cross-examination. The objection to the confidential schedule likewise failed; an undertaking would protect it.
7. The applications to disallow Mrs Burt-Thwaites’ evidence and to prevent her seeing the confidential schedule were refused.