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A Lloyd’s Syndicate v X

Posted on 03/10/2011 · Posted in Expert Witness

Use of an expert instructed by your opponent

The Claimant instructed the Defendant to act as its expert in litigation against a reinsurer and consequently gave the Defendant access to privileged information. Later the Claimant commenced an action against a second reinsurer. The second reinsurer instructed the Defendant as its expert for the purposes of arbitrartion with the Claimant. The Claimant was unhappy that the Defendant was acting for their opponent given that he had privileged information from the Claimant on the exact issue he was now being asked to opine upon. The second reinsurer refused to find another expert and promises from the Defendant that he would not disclose any information did not ease the Claimant’s concern. The Claimant sought a ruling to prevent the Defendant’s evidence being used against it.

The Court refused to grant the Claimant the injunction sought, allowing the Defendant to proceed to give evidence for the second reinsurer. While the Defendant was not allowed to make use of information received while working for the Claimant previously, it was not his responsibility to prove he would not misuse it. It was suggested that the strict test adopted in Prince Jefri would not be appropriate in the context of expert witnesses, rather the Meat Corporation test, asking whether use of the privileged information was unavoidable, was the test to be applied.

Link: A Lloyd’s Syndicate v X [2011] EWHC 2487 (Comm)

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