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  That looks familar!

What if you are asked to report by both sides in an action?

We had a Helpline call recently that raised a question we’re surprised is not asked more often. The expert had written a report for a law firm many months ago, been paid and had heard nothing further. Recently the expert had a new enquiry. On receiving the papers, it quickly became clear that this new enquiry was about the same case reported on previously – but the second law firm was clearly unaware of the earlier report. For whatever reason, the first set of solicitors had chosen not to disclose the expert’s report.

This situation raises three connected issues:

  • conflicts of interest
  • client confidentiality, and
  • privilege.

On the question of conflict of interest, our expert presumed that he was precluded from acting for the second firm because of his previous involvement with the case. While that is probably the wiser course, it is not automatically mandated. It will depend on whether he is still subject to the retainer with the first firm. As Lord Denning put it, there is no property in a witness, and the fact that an expert has been instructed previously by one party does not necessarily mean that he cannot subsequently be instructed by another.

On the question of confidentiality, an expert’s paramount duty is to the court, but he must also respect the confidentiality and privacy of others. It would be wrong to volunteer any information or opinion derived from instructions from the first firm without its express permission. However, openness and honesty in dealings is important, and when difficult situations such as this arise, it is usually best to declare it to those parties affected and either remove the cause of conflict or withdraw from the case entirely.

So far as the broader questions of privilege are concerned, 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 privilege has been waived. In this case, the second firm was not, of course, aware of the expert’s previous involvement and so did not give the expert prior warning of the potential conflict or of any potential for breach of privilege. Likewise the expert will have had no forewarning of the potential conflict. Accordingly, once he had discovered the identity of the party, it would be prudent not to read further, nor to consider any accompanying documents or statements forming part of the instructions; neither should he make disclosure of any information that might risk breaching privilege.

So our advice to the expert was as follows: return the instructions of the second firm regretting his ability to accept them due to a conflict. It would be unwise to volunteer any more information than that.

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Issue 104
July 2017

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November 2017

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