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  Switching sides?

If there is no property in a witness, are experts free to switch sides?

In general terms there is ‘no property in a witness’, and a party is free, subject to the usual constraints and rules of court, to call such witnesses as it desires. This applies as much to the choice of expert witness as to any other type of witness. The issue can arise in cases where one party wishes to call the other side’s expert witness to give evidence when, for one reason or another, the instructing party chooses not to adduce the expert’s evidence.

A call to the Register Helpline concerned a situation in which an expert had been asked to report by an insurer on a claim the insurer declined. Its case file was then closed, but the expert was subsequently approached by the insured party to take instructions on a claim against the insurer. How then does the ‘property’ issue apply?

Professional conduct of solicitors

The solicitor’s rules of professional conduct state that:

A lawyer acting for one party must not question an opposing party’s expert on matters properly protected by the doctrine of legal professional privilege, unless the privilege has been waived. Before contacting an opposing party’s expert, the lawyer must notify the opposing party’s counsel of the lawyer’s intention to do so. When a lawyer contacts an opposing party’s expert in accordance with the preceding Rules, the lawyer must, at the outset: (a) state clearly for whom the lawyer is acting, and that the lawyer is not acting for the party who has retained the expert, and (b) raise with the expert whether the lawyer is accepting responsibility for payment of any fee charged by the expert arising out of the lawyer’s contact with the expert.

Such considerations would not apply where an expert is no longer instructed by the other party, but there remains an obvious potential difficulty in instructing an expert who has previously been instructed (but not ultimately used) by the other side: Is the expert in possession of any privileged information? If information had been communicated to the expert that attracted legal professional privilege, it would be very likely that the original instructing party would object to that expert being instructed subsequently by another party in relation to the same proceedings or in disputes concerning the same subject matter.

It seems likely that there would be an initial presumption that the party was free to instruct any suitably qualified expert. The sole issue for the court would be whether the expert was in possession of information that was privileged and, if so, whether it was practical to prepare a report or give evidence that made no use of that information.

If the nature of the dispute and the information supplied previously to the expert in confidence made it impossible to separate the two, or for the expert otherwise to act independently and impartially, then the court would probably uphold any objection made by the other side. The courts would perhaps be somewhat wary of this kind of situation simply because of the potential it carries for unnecessary complications. It would be particularly so in cases where there was no shortage of experts suitably qualified in the same field. The court may be more tolerant if there was a genuine paucity of experts in a narrow field of expertise and the expert was one of a very few (or perhaps the only) who possessed the necessary level of expertise in that field. We know of no case heard in the courts of England and Wales that tackles the specific circumstances raised by our expert. However, there was a similar case heard in the Hong Kong High Court in 2013.

The laws of Hong Kong are still based on English common law and are similar to those of countries that remain members of the British Commonwealth. Consequently, although not binding, the considerations applied by the Hong Kong court are likely to be similar to those that would be applied if the same case were to be heard in the English courts.

In the Hong Kong case (Daimler AG (formerly known as Mercedes-Benz AG) -v- Leiduck, Herbert Heinz Horst & Another), a party had approached a firm of lawyers seeking expert opinion on some aspects of Russian law, particularly in relation to the registration of companies. That party subsequently decided not to use the firm as experts. However, a second party then approached the same firm with a request that it prepare a report, which the second party then sought to rely on in the proceedings. The first party made an application to strike out the expert’s report as being inadmissible.

Considering the application, the Hong Kong court applied a test similar to that outlined above. It held that there was no property in the witness and dismissed the application on the ground that it was not persuaded that:

  • information for which the first party could claim privilege or confidence had been imparted to the expert, or
  • the expert had disclosed or misused any privileged or confidential information of the first party in acting as the second party’s expert witness.

Furthermore, there was nothing to suggest that the expert had taken a stance against the first party or compromised his impartiality and the duty he owed to the court. Consequently there was no proper ground on which to uphold an objection to his report or to prevent the second party from relying on it.

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Issue 94
February 2016

Switching sides?
Costs -v- fairness
Supreme Court on experts usurping the function of the court


Current issue
September 2017

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