Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd

The strict approach to confidential information in Prince Jeffri Bolkiah v KPMG does not automatically prevent an expert from later giving evidence for the opposing party. Where the expert’s duties arise under CPR Part 35, the overriding duty to the court is a relevant qualification. The court should examine whether the two instructions overlap, whether confidential or privileged information was actually supplied, and whether there is a real risk of disclosure. An expert who conducted the contemporaneous investigation may properly be retained where the issues are distinct and no such risk is evidenced. The court may nevertheless permit a renewed application if a specific privilege or confidentiality issue later emerges.

The claimant brought a £1.5 million insurance claim after a fire at its waste-processing plant. The defendant insurers had instructed Mr Braund, a fire expert, immediately after the fire and relied on his conclusions when declining liability.

After the insurance claim had been rejected, the claimant engaged Mr Braund as a technical adviser concerning possible claims against third parties involved with the conveyor. His report was later served in the proceedings. The claimant applied to prevent the defendant from relying on Mr Braund as its expert, alleging conflict and misuse of confidential or privileged information. The central issue was whether his later instruction by the defendant should be prohibited.

1. Application dismissed. There was no proper basis to prevent the defendant from relying on Mr Braund’s expert evidence. The claimant was given liberty to apply if a specific privilege or confidentiality issue later came to light.
2. The strict principle in Prince Jeffri Bolkiah v KPMG, that the court should intervene unless satisfied that there is no real risk of disclosure of confidential information, required qualification in the context of expert evidence. The present case concerned an expert instructed under CPR Part 35, whose overriding duty was to the court. That duty was a material consideration and modified the strict application of the principle in Prince Jeffri Bolkiah v KPMG.
3. The approach in Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd was applicable. The claimant’s instructions concerned possible recovery against third parties, whereas the defendant’s instructions concerned the cause of the fire. The issues were separate and there was no material overlap or conflict.
4. There was no evidence that privileged or confidential information had in fact been provided to Mr Braund, or that any such information had affected or could affect his opinion. The possibility of disclosure could not be established by general assertion alone.
5. It was relevant that Mr Braund had conducted the contemporaneous post-fire investigation and was well placed to assist the court with the background evidence. His presence and expertise did not require the court to accept his conclusions on causation; that issue remained open for determination on the evidence at trial. Excluding his assistance would be contrary to the interests of justice and the overriding objective.

First-instance decision. The claimant’s application to prohibit the defendant from relying on its chosen expert was dismissed.