EXPERT FIRM SERVICES: WHERE DOES THE DUTY LIE?
On 3 April 2020, the English High Court (Technology and Construction Court) continued an interim injunction against three related expert consultancies forming part of the same global group (the defendants or ‘X’, ‘Y’ or ‘Z’). The injunction prevents the defendants from continuing to act in a London seated International Chamber of Commerce (ICC) arbitration against the claimant developer due to one of their entities having an ongoing instruction to provide delay analyses and expert witness services for the claimant in a separate arbitration, but on the same construction project.
This is an important decision issued by Justice O’Farrel in the case of A Company v. X, Y and Z, as it concludes that the appointed defendants’ expert firm, and its global affiliates, owed a fiduciary duty of loyalty to the claimant. While the experts’ overriding duty is to the tribunal, it is not inconsistent with the duty of loyalty that may be owed to its client.
The judgment is a welcome acknowledgement of the law relating to duties experts have to their clients and to a tribunal or a court. It also recognises the reality that experts are often engaged to provide ongoing support during the course of a dispute and that many litigants view experts as part of their dispute team and often include them in wider strategic discussions.
The background
The claimant is the developer of a petrochemical plant. The claimant entered into a series of contracts including a contract with a contractor for the construction of facilities and an engineering, procurement and construction management (EPCM) contract with a company (A).
Disputes arose out of the construction contracts and the facilities contractor referred disputes with the claimant to an ICC arbitration. Those disputes concerned, among other things, the late issue of issue for construction (IFC) drawings that were provided by A.
Jul-Sep 2020 issue
King & Spalding LLP