In a recent UK High Court case*, the claimant applied to the Court seeking a direction that permission for the defendants to call an expert witness be refused on the basis that the expert was in possession of confidential and privileged information concerning the claimant, and that she lacked the independence necessary of an expert.
The claimant contended that the expert, Mrs Burt-Thwaites, agreed to act as its expert and thereafter, confidential and privileged information was supplied to her. However she subsequently changed her mind, claiming a possible conflict of interest arising from her discussions with the defendant about being engaged as its consultant, and receiving sponsorship from the defendant to be a member of an industry association. The claimant and defendant instructed other experts, but the defendant later changed its mind and instructed Mrs Burt-Thwaites.
The defendant's solicitors acknowledged that communications between Mrs Burt-Thwaites and the claimant should remain confidential and should not be divulged to the defendant or the Court. Mrs Burt-Thwaites also offered an undertaking to the Court not to disclose any of it.
The Court refused the application to disallow Mrs Burt-Thwaites' expert evidence. However, the claimants were entitled to challenge the degree of Mrs Burt-Thwaite's independence in cross-examination at the trial.
The Court held that the full rigours of the test in the case of HRH Prince Jefri Bolkiah v KPMG  EWCA Civ 1563 should not be applied, simply because privileged information had been given to the Mrs Burt-Thwaites. In Jefri, KPMG had provided extensive forensic accountancy services to the claimant, and the claimant successfully restrained them from acting for an opponent in litigation. Crucially in Jefri, the accountants had acted as quasi-solicitors and were given access to highly confidential information about the claimant's assets. The Court held that the relationship in the instant case, between the claimants and Mrs Burt-Thwaites, was not of that order.
Furthermore, Mrs Burt-Thwaites had not actually been engaged by the claimants, her agreement to act, if any, was one in principle only and not binding at that stage. The information she received was in the course of enquiries about whether she would act as an expert. In addition, most of the disclosure was irrelevant to her functions as an expert and would have been uninteresting to the defendant.
The judge referred to the general principle that there is no property in a witness, as applied in Harmony Shipping Co SA v Saudi Europe Line Ltd  1 WLR 1380. In that case, Lord Denning found that the principle still applied despite the fact that the expert witness may have been told the substance of a party's case, and may have been given a great deal of confidential information. However, the judge noted that other cases demonstrate that in certain circumstances an expert should not be permitted to act where it is likely that the expert will be unable to avoid resorting to privileged material to which he should not resort.
In regard to the alleged lack of independence of the expert, the Court noted that Nelson J in the case of Armchair Passenger Transport Ltd v Helical Bar plc  EWHC 367 set out the general principles which should be applied in cases of challenged independence:
- It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings.
- The existence of such an interest, whether as an employee 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 that matters, not the mere fact of the interest or connection.
- Where the expert has an interest in the outcome, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.
- 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 perrmitted to give evidence.
- The questions which have to be determined are whether: (i) the person has lowered expertise; and (ii) he/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 party thereto, to carry out that duty.
- The judge will have to weigh the alternative choices openly if the expert's evidence is excluded.
- 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.
The judge added a further qualification of his own in the instant case, namely, that in some circumstances it may not be possible to resolve the question of independence at an interlocutory stage, because the facts may need teasing out in evidence. In such instances the prospect of having to decide the point at a trial should not be ruled out.
The judge found that case-law (eg. Toth v Jarman  Civ 1028) demonstrated that whether an expert is disqualified by reason of a connection with a party "will depend on all the facts of the case, and not on single bright-line considerations such as whether or not he or she is already in some form of contractual relationship with the party who seeks to call that expert." The Court held that there was not sufficient evidence to justify a ruling that Mrs Burt-Thwaites was compromised as an expert witness. It was clear from case-law that the status of an employee does not automatically disqualify a person as an expert, and therefore Mrs Burt-Thwaites' status as a consultant, could not automatically disqualify her. A lot more than that would have to be established.
It is likely that a similar result would be reached by the Irish Courts. In Ireland, the approach taken in Galvin v Murray  IESC was that a person is not automatically excluded from being an expert by reason of employment by one of the parties. Rather that fact should be taken into account when assessing the weight to be accorded to the evidence of the expert. In its recent Consultation Paper on 'Expert Evidence', the Law Reform Commission noted that the Courts are reluctant to hold that evidence of a connection between a party and an expert leads to automatic exclusion of the expert evidence on the grounds of bias, as such a finding would significantly reduce the pool of experts available in a given case, and lead to more delays and expense.
* Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd  EWHC 474 (Ch)