A v B

An independent expert may owe a fiduciary duty of loyalty to the client where the retainer includes extensive litigation or arbitration advice and support, in addition to expert evidence. The expert’s paramount duty to the court or tribunal does not exclude that duty. Where the duty arises, confidentiality screens do not cure a conflict in which the expert’s firm acts for the client in one arbitration and against it in another concerning overlapping issues. The duty may extend beyond the individual expert to the expert’s firm and wider corporate group. An interim injunction which effectively grants the final relief should be continued only where success at trial is likely and the balance of justice favours relief.

The claimant engaged the defendants to provide expert evidence, advice and support in an arbitration concerning delay to construction works. The defendants later accepted instructions from a third party in a related arbitration against the claimant, involving overlapping delay issues and potential claims arising from the same project.

The claimant sought continuation of an interim injunction restraining the defendants from acting for the third party. It no longer pursued relief based on disclosure or misuse of confidential information. The central questions were whether the defendants owed a fiduciary duty of loyalty, whether accepting the second engagement breached that duty, and whether the injunction should continue.

1. Jurisdiction. The Court had jurisdiction. The second defendant was domiciled in England and was an anchor defendant. Permission to serve the other defendants out of the jurisdiction would be available under Civil Procedure Rules 1998 r 6.36 and para 3.1 of Practice Direction 6B. The exclusive jurisdiction clause in the confidentiality agreement did not govern the fiduciary claim, which arose from the engagement contract.
2. Fiduciary duty. The principles in Bristol & West Building Society v Mothew [1998] Ch 1 and Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 established the distinction between loyalty owed to an existing client and confidentiality owed to a former client. The authorities concerning experts did not establish that an independent expert could never owe fiduciary duties.
3. An expert’s paramount duty to the court or tribunal is compatible with a duty of loyalty to the client. The expert’s retainer may create a relationship of trust and confidence, particularly where it includes extensive advice and support throughout litigation or arbitration. The reasoning in Jones v Kaney [2011] 2 AC 398 confirmed that the expert’s court duty does not replace or conflict with the contractual duties owed to the client.
4. On the facts, the defendants’ engagement went beyond the preparation of an independent report. It included substantial advice, analysis and support. A fiduciary relationship therefore arose. The duty extended to the defendant group, not merely the individual expert or first defendant, applying the approach in Prince Jefri Bolkiah v KPMG and the authorities concerning firms and corporate groups.
5. The defendants’ confidentiality screens addressed information risk, not the separate obligation of loyalty. Acting for the claimant in one arbitration and against it in another, where the disputes concerned the same delays and substantially overlapping issues, placed the defendants in a conflict of interest and breached the fiduciary duty.
6. Although continuation of the injunction would effectively grant the final relief, the claimant was likely to succeed at trial and the balance of justice favoured continuation. The interim injunction was continued pending trial.