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Duties of experts in related arbitration proceedings: the English Court of Appeal’s decision in Secretariat Consulting Pte Ltd v. A Company

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Page d'accueil Perspectives Duties of experts in related arbitration proceedings: the English Court of Appeal’s decision in Secretariat Consulting Pte Ltd v. A Company

There have been a number of important developments in relation to the law relating to the duty of arbitrators (a) to give disclosure, and (b) to avoid conflicts of interest arising from appointments in related arbitrations.

This client alert is similarly concerned with duties in international arbitration, albeit with the duties on expert witnesses to avoid conflicts of interest, particularly in related arbitral proceedings and/or arbitrations involving common issues.

Summary

In Secretariat Consulting Pte Ltd v A Company, the Court of Appeal unanimously upheld the decision of the Technology and Construction Court in A v B [2020] EWHC 809, granting an injunction to restrain the UK branch of the claimant group from acting as an expert witness for a third party against an existing client of its Singapore branch in related arbitrations. The Court of Appeal held that the duty to avoid conflicts of interest owed to the client was owed by the entire group even though the client had retained experts from only the Singapore branch of the group.

Core to the court’s holding were the following facts: (a) the group operated and marketed its services as a single global firm, (b) the terms of the Singapore branch’s retainer with the client contained a duty to not disclose confidential information, and (c) the retainer with the third party related to the same underlying project.

The court considered the question of whether experts owe fiduciary duties of loyalty to their clients but found it unnecessary on the facts to determine that question. This is the first time the English courts have considered whether an expert’s duties in potentially conflicting concurrent retainers can bind all entities within a firm providing expert services.