During London International Disputes Week earlier this month a panel considered the duties and functions of experts and a panellist called for a detailed code on conflicts for experts. That is a difficult request to meet, as we seek to explain.

…an expert is … a kind of intellectual prostitute ready to sell his opinion and enlist in the services of the side that pays him” – so said an article in the Yale Law Journal in 1910. To some observers, little has changed in the intervening century.

My partner and co-head of international arbitration at Fox Williams, Ben Giaretta, moderated an excellent panel on the duties of experts at LIDW earlier this month. Don Harvey of Secretariat called for a clear guide to the issue of conflicts for experts.

He was right to do so. But the answer is not as simple as he might have hoped. The following propositions illustrate, I hope, the considerations. Of key importance is that it has to be recalled that the treatment of an expert is not the same as counsel or arbitrator. For the latter it is a binary question of disqualification or not. The expert, however, is subject to not only a threshold question of disqualification but also a question of the weight to be given to any evidence that is admitted.

The starting point is that when providing expert witness services, the expert has a paramount duty to the court or tribunal, which might require the expert to act in a way which does not advance the client’s case: Jones v Kaney [2011]

Secondly, the special status of experts is a function of their duty to the court or tribunal as set out in the now classic statement in The Ikarian Reefer [1993]. In that case, following an 87-day trial, Cresswell J believed that a misunderstanding of the duties and responsibilities of expert witnesses had contributed to the length of the trial. He listed obiter the duties and responsibilities of experts, the first two of which are especially important:

“1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation . . . .

2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his [or her] expertise . . . . An expert witness in the High Court should never assume the role of an advocate.”

Thirdly, an expert can be disqualified. In the ICSID case of Bridgestone. v. Panama (ICSID Case No. ARB/16/34) the Claimants applied to disqualify an expert appointed by Respondent on the basis that it had earlier approached the same witness and specifically by a telephone conversation imparted information that it contended was both confidential and subject to legal professional privilege. Because of that, it submitted that the expert was disqualified from subsequently acting as an expert witness for the Respondent.

The Tribunal, presided over by Lord Phillips, held that it had the power to disqualify:

We are in no doubt that, if [the expert] is disqualified from acting as an expert witness or his participation in these proceedings in that capacity will involve a breach of confidence, legal professional privilege or other legal impropriety, it falls within our competence to rule that his evidence is not to be admitted.”

This passage had echoes of the same Lord Phillips MR’s judgment in Factortame (No 8) [2002] where he said:

“Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a pre-condition to the admissibility of his evidence Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the Court as soon as possible The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question the judge will have to weigh the alternative choices open if the expert’s evidence is excluded, …”

Fourthly, even employment by one of the parties, which might be thought to be a clear conflict, will not generally be sufficient to disqualify an expert. In Field v Leeds City Council (2000) the issue was whether it was inappropriate for an expert to be an employee of one of the parties: the proposition that if an expert is properly qualified to give evidence, then the fact that he is employed by a party would not disqualify him from giving evidence was described as “absolutely correct”. Waller LJ said:

“The question whether someone should be able to give expert evidence should depend on whether, (i) it can be demonstrated whether that person has relevant expertise in an area in issue in the case; and (ii) that it can be demonstrated that he or she is aware of their primary duty to the court if they give expert evidence.”

May LJ, concurring, said:

“As to questions of opinion and generally, I entirely agree …, that there is no overriding objection to a properly qualified person giving opinion evidence because he is employed by one of the parties. The fact of his employment may affect its weight but that is another matter.”

Fifthly, the tests and circumstances of potentially excluding expert testimony were summarised in Armchair Passenger Transport Limited v Helical Bar Plc [2003] by Nelson J as follows:

The following principles emerge from these authorities:—

i) It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings.

ii) The existence of such an interest, whether as an employee of one of the parties or otherwise, does not automatically render the evidence of the proposed expert inadmissible. It is the nature and extent of the interest or connection which matters, not the mere fact of the interest or connection.

iii) Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.

iv) The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether or not an expert witness should be permitted to give evidence.

v) The questions which have to be determined are whether (i) the person has relevant expertise and (ii) he or she is aware of their primary duty to the Court if they give expert evidence, and willing and able, despite the interest or connection with the litigation or a party thereto, to carry out that duty.

vi) The Judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the [court rules].

vii) If the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence.”

To similar effect is the Supreme Court of Canada in WBLI v. Abbott and Haliburton Company Limited [2015]. The Court considered Australian, United States and English cases and is well worth a full consideration. The facts were that shareholders started a professional negligence action against the former auditors of their company after they had retained a different accountant, (“GT”), to perform various accounting tasks and which, in their view, revealed problems with the former auditors’ work. The auditors brought a motion for summary judgment seeking to have the shareholders’ action dismissed. In response, the shareholders retained an expert, a forensic accounting partner at a different office of GT, to review all the relevant materials and to prepare a report. Her affidavit set out her findings, including her opinion that the auditors had not complied with their professional obligations to the shareholders. The auditors applied to strike out the affidavit on the grounds that the expert was not an impartial expert witness.

Cromwell J giving the judgment of the Court said:

“…the decision as to whether an expert should be permitted to give evidence despite having an interest or connection with the litigation is a matter of fact and degree. The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.”

In conclusion, a code for experts would be a very difficult drafting exercise as the test is thus the threshold test of being suitably qualified to tender opinion evidence and fulfilling the primary duty to the court or tribunal. There are then a potentially huge variety of factors that might go to the weight to be given to any evidence that is admitted.

Difficulty in drafting is, however, no reason not to try and perhaps the CIArb, IBA or some other body might like to establish a commission to have a go ….