Issue 39 October 2021 - Journal - Page 21
Conflict of Interest
by Alec Samuels
cousins. Perhaps one is a shareholder in the company
of the other. Or the expert may have in the past acted
for the other side. He may have been a handwriting
expert not realising that he was being approached by
both sides. These situations are not necessarily a bar,
but should be investigated and appraised. Confidential information may have been involved in the
previous relationship with the other side.
Every expert “worth his salt” is aware of the necessity
to avoid a conflict of interest or the perception of
a conflict of interest in his evidence. If the risk is
present he has an instinctive or intuitive awareness,
he feels it in his bones, he feels distinctly uncomfortable. The duty to the client is to exercise reasonable
care, the sort of care to be expected of a professional
in the circumstances. The duty to the court is to be
honest, impartial, independent, objective, unbiased –
an advocate for the truth.
Some situations almost automatically arouse suspicion.
As the expert has acted for the client before, if the
client wins he will probably instruct the same expert
again, and the more work the expert has the more
reputationally and financially he will gain; so there
may be a temptation not to disclose. Also in the course
of a busy commercial life the expert and the parties
may have genuinely forgotten or not appreciated the
possible significance of their previous relationship.
The expert should seek to establish and maintain a
professional arm’s length from the client, however
well he may know the client, however good their
The expert who sees himself as a member of the team,
trying to help the client to win, acting as an advocate
for the client, praising his client, will be exposed,
damage the case for the client, upset the judge, and
probably be publicly criticised by the judge, and
suffer serious loss of reputation. The expert lets the
lawyers get on with the law and the procedure and
the strategy; he sticks to his lathe, he stays in his
comfort zone, he keeps to his ethic.
So the expert at the beginning should ask himself:
Have I ever had any professional or other relationship with either party? Is there any chance of a conflict
of interest? If so should I withdraw? Or disclose?
Any evidence that the client or the instructing solicitor
had been trying to influence the expert, or to get him
to change his report, and succeeding, will of course be
disastrous for credibility.
The doctor instructed as expert for the patient
bringing a case in clinical negligence is not acting on
behalf of the patient but as an expert in the proper
professional practice of medicine, in order to enlighten the judge. The expert has a different and separate and detached role from all the others involved in
the case brought by the client. The expert may find it
necessary to take a view unfavourable to the client.
So be it. The lawyers will know how to handle the
So the expert must never allow himself to be carried
away by the excitement of battle. What is the scientific
truth about the whole matter? Nothing less.
A simple, lucid and reliable source of the law and
practice is to be found in the professional handbook
The Reliable Expert Witness, a guide to professional
reports and expert evidence, by Mark Tottenham,
Clarus Press, 2021, pp 20-21, 54-56 and 101. The
latest judicial statement is to be found in Secretariat
Consulting v A Company  EWCA Civ 6, at
paragraphs 88-89 and 102-124, a complicated factual
case but a straightforward legal judicial decision. In
Zuber Bux v GMC  EWHC 762 (Admin)
Mostyn J lucidly summarises and illustrates the law
paras 23-33, 34-47, 48-58, referring to hospitality and
relationship between client and expert, and describing
a knowing conflict of interest as moral turpitude.
If a conflict of interest does exist, or emerges during
the progress of the case, then the expert must immediately disclose that conflict to the instructing solicitor
and to the other side, and probably withdraw, unless
the opposite party agrees that the expert should be
allowed to continue; and then the matter must be disclosed to the judge. Failure to disclose when required
to do so is unacceptable.
A conflict of interest may arise inadvertently or almost
inadvertently. The expert has frequently assisted the
client in the past, in a proper professional relationship, e.g. as a surveyor in building disputes. Or the
expert was an employee in the same company. Perhaps the client is often involved in litigation; perhaps
the expert is one of only very few specialists in the subject-matter. Perhaps many years ago the expert and
the client were students together, or worked on the
same project, or had a few little business dealings.
Perhaps they were distantly related, e.g. second
EXPERT WITNESS JOURNAL
The law of evidence is well served in the books: Law
of evidence, Ian Dennis, 7th edition, Sweet and
Maxwell, 2020. Cross and Tapper, Roderick Munday,
13th edition, OUP, 2018. Murphy on Evidence,
R Glover, 15th edition, OUP, 2018. Phipson on
Evidence, HM Malek QC, 19th edition, Sweet and
© Alec Samuels
O C TO B E R 2 0 2 1