Wheeldon Brothers Waste Limited v Millennium Insurance Company Limited [2017] EWHC 218 (TCC)

In this case, the court considered whether certain work carried out for the Insured by an expert fire investigator should prohibit Insurers from being able to rely upon him as an expert witness in separate but connected coverage proceedings between Insured and Insurer.

Following a fire at the Insured’s waste processing plant, a forensic expert (Mr B) was engaged by Insurers to visit the site and carry out the usual post-fire investigations. Having carried out such investigations, Mr B reported back to Insurers who, on the basis of Mr B’s findings, declined cover in respect of the Insured’s claim.

Cover having been declined, the Insured decided to explore the possibility of a claim against certain third parties. The Insured approached Mr B to see whether he could assist for these purposes. Insurer’s loss adjusters having given their permission, the Insured engaged Mr B on the express basis that we was acting as a “technical advisor only” and not as an expert under part 35 of the CPR.

Subsequently, and separately, proceedings were commenced by the Insured against Insurers in respect of their insurance claim. In those proceedings, the Insured argued that Insurers were precluded from relying upon Mr B’s expert evidence, as a consequence of his engagement by the Insured. The Insured essentially argued, by reference to previous authorities, that the Insurers were so precluded because discussions between Mr B and the Insured regarding the proposed third party claim had “necessarily involved privileged and confidential matters”.

The court rejected the Insured’s argument. It did so for four principal reasons:

First, Mr B was in the best possible position to assist the court on many of the background issues surrounding the fire and it would be contrary to the interests of justice if the court’s enquiry were to be carried out without his assistance.

Secondly, the court did not see any overlap or conflict between Mr B’s instruction by the Insured and instruction by Insurers. Mr B had agreed to assist and loss adjusters had provided their permission on the express basis that these were separate areas of investigation.

Thirdly, Mr B was instructed by Insurers under CPR Part 35. This meant that his overriding duty was to the court, which “trumped everything else”.

Fourthly, there was no evidence to suggest that any privileged or confidential matters had in fact been raised by the Insured with Mr B, “much less any which (or could have had) an impact on his opinion as to the cause of the fire”.

As the court noted, whilst it had no doubt that what had transpired in this case was inadvertent, if the Insured’s argument was right then, “with other parties and in other circumstances, a request by a claimant to use a defendant’s expert, ostensibly for good reason might later be used as a vehicle to prevent that expert giving evidence at all.”