The expert and potential conflicts of interest


a man signs a legal document

In this article, Giles Eyre considers the requirement on an expert to avoid a potential conflict of interest and a recent case considering the issue.

Background


Experts providing their services in court must be alert to the situations in which conflicts of interest arise, or may potentially arise, or in which the appearance of such a conflict might arise. 

This is a component of the requirement of independence on the part of an expert:

Experts must provide opinions that are independent…

Para 11 of Guidance for the Instruction of Experts to give evidence in Civil Claims (‘the Guidance’)

This requirement long pre-dated the introduction of the Civil Procedure Rules in April 1999.

In EXP v Barker [2015] EWHC 38, the court deprecated a medical expert who, it transpired (in the course of cross-examination), had worked for a considerable time with the party in whose favour he was giving evidence, and whom the expert regarded as having ‘guided and inspired his practice’. 

Worse still, it was the party who had recommended the instruction of the medical expert, whom he knew well, to act on his behalf. 

The loss of independence, and the conflict of interest, which could well arise in this situation, and most certainly the appearance of a loss of independence or conflict of interest, fatally damaged the credibility of the expert in the litigation. It must also have been extremely embarrassing, both personally and professionally, for both the expert and the clinician who suggested his instruction.

To help guard against this situation, in the High Court in clinical negligence claims the standard direction states that:

Experts shall, at the time of producing their reports, produce a CV giving details of any employment or activity which raises a possible conflict of interest.

Whether or not that direction appears in a court order, an expert should follow that guidance whenever providing a court report and disclose anything which might raise a possible conflict of interest.

The Secretariat case


In the recent case of Secretariat v A Company [2021] EWCA Civ 6, for the first time the Court of Appeal was required to consider (1) the duties on an expert engaged on two potentially conflicting retainers concurrently, and (2) whether such duties bound all relevant entities within the expert firm. 

The case concerned an international consulting firm which was providing expert witness services for opposing sides in two separate but closely related international construction arbitrations; in one acting for Company A in a claim brought by a subcontractor and in the other acting for a project manager claiming against Company A. 

The expert was a different entity within a group of corporate entities. The court granted an injunction preventing the expert in the second claim acting against Company A for whom a related expert entity acted.

The question arose as to whether it can be implied in law that an expert has a fiduciary duty owed to the party from whom it initially took instructions which prevented it from getting into a situation where a potential conflict of interest could arise. The Court avoided deciding the case on this basis, relying instead on the express terms of the retainer between the expert and the Company, which construed in context were found to prohibit conflicts of interest throughout the duration of the engagement as expert. The Court also found that the entire corporate group of expert companies was bound by that provision.

It was the overlap of parties, roles, projects and subject matter that was “all-pervasive” and gave rise to a clear conflict of interest as a result of the second expert engagement as the two experts could plausibly find themselves supporting opposing positions on the same or substantially similar issues. 

It is interesting to note that the Court also found that the conflict of interest would arise whether the expert was intended to give evidence in court or was taking a wider advisory role, while recognising that greater conflicts of interest are likely to arise where an expert had been involved in the preparation of the client's case from an early stage.   

It was also stressed that existence of a conflict of interest is a matter of degree, and that the Court’s observations in the present case should not be taken as concluding that the same expert cannot act both for and against the same client in relation to a different project. 

Learning points

1. An expert must be aware of the potential for a conflict of interest and if in any doubt disclose the facts on which the potential conflict could be argued to arise.

Particularly in clinical negligence claims, for a clinical expert it might be difficult to avoid situations in which the expert has some knowledge of the individuals whose conduct is under scrutiny to the Trust or hospital at which the events occurred. There must be recognition on the part of the expert that an appearance of conflict of interest (or loss of independence) might arise, whether that is potentially favourable or unfavourable to the party being criticised.

Conflicts of interest can arise in many ways. An expert instructed to report for the purpose of defending a claim against a health provider could find a potential conflict of interest in accepting instructions in a claim against that health provider while the first claim is continuing, depending on the circumstances of the two claims. An expert receiving frequent instructions from the same solicitor, to the extent that that provides a significant income, could, depending on the nature of the relationship, arguably experience a conflict of interest because providing an ‘unhelpful’ report might prejudice that income stream.

2. Prompt disclosure of any such potential conflicts is essential. Ideally this should be when the expert is instructed, but sometimes such potential conflicts only become apparent at a later stage, for example when all of the medical records have been obtained.

It is better to provide the facts which could arguably be said to raise the potential for an appearance of a conflict and explain why in fact there is no such conflict. For example, a clinical expert might have worked previously in a Trust or department or with a person whose actions or defaults might be the subject of the investigation, but any contact might have been fleeting or many years ago, and therefore considered by the expert as not giving rise to a conflict of interest.

 

3. The potential for conflicts of interest should be clearly addressed in an expert's terms of engagement. This may need be no more than a statement that “the expert confirms that they are not conflicted to act as an independent expert in this matter”.

In Secretariat, the expert was asked to confirm in terms similar to those above before being instructed, and carried out a conflict check, following which the expert confirmed that there was no conflict. The subsequent letter of instruction confirmed that the expert would provide an unbiased opinion as an independent witness and that the expert would comply with the relevant arbitration Expert Witness Protocol, which contains requirements similar to the Practice Direction to Part 35 of the Civil Procedure Rules and the Guidance. As a result, there was a contractual duty to avoid conflicts of interest.

 

Giles Eyre is a retired barrister and an Associate Member of Chambers at 9 Gough Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine.  He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.co.uk) and through book retailers, and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net .

 

Special Offer: ‘Clinical Practice and the Law – a legal primer’ (normal price £34.95) is available at £19.95 plus £4.95 p&p direct from the author by email to  geyre@9goughchambers.co.uk for a limited time. (A retailer who normally sells at medical conferences has returned copies unsold because of the pandemic, and the offer remains while these stocks last!)  More information about the book and reviews are available at www.prosols.co.uk