Whether insurer could instruct an expert whom the insured had also subsequently used

Following a fire at the insured's premises, insurers instructed an expert to investigate. The conclusions of that investigation led the insurer to decline liability. The insured then instructed the same expert (not as a CPR r35 expert and with the loss adjusters' permission) to investigate whether the insured could bring a claim against third parties.

When the insured subsequently commenced proceedings against insurers, insurers sought to instruct the expert under CPR r35 and the insured sought to prohibit that. The insured relied on the House of Lords case of Prince Jefri Bolkiah v KPMG [1999] (which did not concern the appointment of an expert), in which it was held that accountants who provide litigation support services have a duty to preserve confidentiality (including not acting for the other side). However, in Meat Corporation of Namibia v Dawn Meats Mann J held that the strict test in Prince Jefri does not apply just because an expert has received privileged and confidential information.

Coulson J agreed with that reasoning and held there was no basis for preventing the insurer from relying on the expert here. That was because:

(1) The expert had undertaken a contemporaneous investigation and so was in "the best possible position" to assist the court;

(2) There had been no overlap between what the insurer and the insured has asked the expert to do. The insurer had had no interest in whether a claim could be brought against third parties;

(3) Experts owe an overriding duty to the court and "that duty trumps everything else… the existence of that overriding duty also modifies the strict application of the rule in Prince Jefri"; and

(4) Crucially, there was no evidence that confidential information had been passed to the expert here and "certainly no risk that it would be passed to the defendant". The insured's letter instructing the expert had included a confidentiality clause.