Use of an expert in possession of confidential or privileged information of the other side
The Claimant was MeatCo and the Defendant was Dawn Meats. The parties had an agency agreement and the Claimant alleged that the Defendant was in breach of a number of the agreement’s terms.
The Defendant identified an expert it wished to call to give evidence at trial, a Mrs Burt-Thwaites who was a retired meat trader and a vice-president of the International Meat Trade Association. The Claimant opposed Mrs Burt-Thwaites’ appointment as she possessed confidential and privileged information relating to the Claimant.
The Court held that an expert would not be prevented from acting as a witness for a litigant when it had previously received confidential or privileged information relating to the other side. In distinguishing PrinceJefri, the Court stated that an expert’s relationship with a litigant did not equate to a solicitor’s relationship with a litigant, and having confidential information on the litigant did not necessarily mean that an expert’s independence would be compromised (although independence could be challenged on cross-examination).
Although Mrs Burt-Thwaite could therefore give evidence for the Defendant, confidentiality and privilege of the Claimant’s information would have to be maintained. On the facts the Court was satisfied that Mrs Burt-Thwaite would not breach the confidentiality undertaking she had made to the Claimant and that in any case most of the disclosure made to Mrs Burt-Thwaite would be irrelevant to her functions as an expert and would not threaten her independence.
Link: Meat Corporation of Namibia v Dawn Meats [2011] EWHC 474 (Ch)
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