Secretariat Consulting PTE Ltd & Ors v A Company

An expert’s overriding duty to a court or tribunal does not prevent contractual duties owed to the instructing client. The scope of any duty to avoid conflicts of interest depends principally on the retainer.

A term confirming that there is no conflict, and undertaking to maintain that position during the engagement, prevents the expert from accepting conflicting instructions. On its proper construction, such an undertaking may bind a group operating and presenting itself as one global firm, particularly where its conflict check was group-wide.

Conflict is a matter of degree. It arose where connected group entities provided wide litigation-support services on opposing sides of closely overlapping disputes concerning the same project, roles and delay issues. Ethical screens and the absence of a proved risk of disclosure did not cure the contractual breach.

The respondent was the developer of a petrochemical project. It retained Secretariat Consulting Pte Ltd (SCL) to provide delay-expert and wider arbitration-support services in an arbitration with a subcontractor. SCL confirmed that it had no conflict of interest and would maintain that position throughout its engagement.

Another Secretariat group company, Secretariat International UK Ltd (SIUL), later accepted instructions from the project manager to provide quantum and delay-related support in a separate arbitration against the respondent arising from the same project. The respondent obtained an injunction. O’Farrell J held that SCL owed a fiduciary duty of loyalty which extended throughout the group: [2020] EWHC 809 (TCC).

The appeal concerned whether there was a relevant duty, whether it bound the other group entities, and whether the two engagements created a conflict of interest.

1. Appeal dismissed. The injunction was correctly maintained, although the Court of Appeal did not need to uphold the first-instance finding of a freestanding fiduciary duty of loyalty.

2. The relationship between a professional expert and client is principally contractual. SCL’s express confirmation that it had no conflict and would maintain that position during the engagement imposed a clear contractual duty not to create or accept a conflict of interest. The duty was independent of duties concerning confidential information. The expert’s overriding duty of independence to a tribunal did not contradict that conclusion: an independent and objective expert provides the client with the service for which it contracted.

3. On the particular contractual and factual setting, SCL gave its undertaking for the Secretariat group as a whole. The group-wide conflict check, shared branding and marketing as a global firm, common email identity, and the practical presentation of its personnel as one team made that construction commercially realistic. This was ordinary contractual construction, not piercing the corporate veil.

4. There was a clear conflict. Both entities provided broad arbitration-support services, rather than merely discrete trial testimony. The arbitrations involved substantial overlap of project, parties’ roles, delay issues and subject matter. The project manager was effectively the respondent’s representative for project purposes, while its interests in the second arbitration were opposed to the respondent’s. Separate corporate entities, offices, arbitrations and labels of delay or quantum expertise did not remove the conflict.

5. Once the contractual duty and conflict were established, no proof of actual disclosure, or a real risk of disclosure, of confidential information was required. Ethical and physical screens could not cure the breach. Coulson LJ, with whom Males and Carr LJJ agreed, left open whether an expert might in another case owe a freestanding fiduciary duty.

• Court of Appeal (Civil Division): Dismissed the Secretariat entities’ appeal and upheld the injunction, on the contractual conflict-of-interest obligation.

• High Court, Technology and Construction Court: O’Farrell J held that SCL owed a fiduciary duty of loyalty extending to the group, found a conflict, and continued the injunction: [2020] EWHC 809 (TCC).