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An Uneasy Situation or a Conflict of Interest?
- Dec 21, 2020
- Latest Journal
by Robert Dale, Senior Partner at Daniel Connal Partnership
Think of this scenario for a moment: an instruction lands in the inbox, asking you to act as an expert witness in a case where the opposing party is represented by a solicitor well-known to you. So well-known in fact, you are actively working on another case for them! Should you take it on?
Perhaps you might feel a little uneasy, but there is not necessarily a conflict of interest preventing you taking on the case.
You open another email, this time from a solicitor who has instructed you at least a dozen times already this year. You have developed a close working relationship and enjoy each other’s company at working lunches, you even attended a charity golf day together on the same team earlier in the year. Is there a conflict of interest here?
Whilst you may be confident that you can fulfil your role impartially, a challenge in court, or a suggestion that you are too close to the instructing party, that your evidence is being prepared solely for the benefit of that instructing party might be uncomfortable - even tricky - to defend.
It is a well understood principle that one’s duty as an expert witness is to the court or tribunal not to the instructing party or the person paying your fees. For over a quarter of a century, since the seminal case of the Ikarian Reefer there have been various codes of conduct and ethical rules published that confirm that the overriding and primary duty of an expert witness is to be independent and impartial.
But it is not enough just to be independent and impartial. Remember that an expert witness needs to be seen to be independent and impartial, making sure they clearly declare any potential conflict of interest. So how does the expert determine that he or she has a potential conflict of interest? A conflict of interest is clear when the expert has a personal or pecuniary interest in the outcome of the case, but it becomes less clear where personal relationships are concerned.
After all, most experts have gone around the block a fair bit. In gaining their required experience they will have worked with countless individuals and a multitude of companies. Acquiring this expert knowledge will be the result of being widely active in their industry. Over time an expert will have naturally developed and indeed nurtured a significant professional network in their own field.
Even expert witnesses have a life outside work; so professional work networks can expand into friendships, wider memberships of clubs and societies, support for charities, etc... As an analogy, Atticus Finch in “To Kill a Mockingbird” did not rely on an expert witness when acting in court, but if he had perhaps his lasting quote might have been; “You can choose your friends but you can’t choose your network.”
What about the Six Degrees of Separation rule?
If there are only six degrees of separation between us all, it is no surprise that connections exist. Visualise the Venn diagram created when choosing an expert witness purely from a small pool of specialism and local geography, connections are virtually inevitable.
So, when does having worked with, or even knowing well outside work, one of the parties to a case create a conflict of interest? In our global economy, what about multi-national companies with lots of subsidiaries and potential connections around the world, how does this sit with conflict of interests? What about a relationship between the expert and the representative of one of the parties? Or the fact that the expert witness’ portfolio of shares might include those of one of the companies involved in the dispute?
Guidance updates for 2021
An updated publication by the Royal Institution of Chartered Surveyors (RICS) this year, will help a surveyor and other expert witnesses faced with these and other scenarios. Due to come into force at the beginning of February 2021, RICS have recently published a second edition of the guidance note Conflicts of Interest for Members acting as Dispute Resolvers. This guidance provides a very useful traffic light system that experts as well as dispute resolvers, might adopt when considering whether a conflict of interest might exist or be perceived to exist.
The traffic light system considers various situations giving guidance on when an involvement should be disclosed and may amount to a conflict of interest:
Red: Situations where it would be inappropriate to accept an instruction because of a clear conflict of interest.
Orange: Situations that might amount to a conflict of interest and should be disclosed.
Green: Situations where conflicts of interest do not exist.
Inevitably this guidance will not cover every situation. Please also remember that, due to a limited pool of suitable experts in a specific industry or geographical location, having a conflict of interest might not necessarily make an expert’s evidence inadmissible. The expert will, however, want to be certain they have openly disclosed any possible conflict of interest. RICS revised guidance note will be a valuable reference tool to guide us with making such disclosures.
Robert Dale is a RICS Registered Expert and Senior Partner at Daniel Connal Partnership (DCP), where many senior surveyors are certified and experienced in providing expert opinion. DCP is an award-winning multi-disciplinary construction consultancy with offices in London, Colchester and Norwich. All of our Expert Reports and working practices comply with ‘Surveyors acting as Expert Witnesses’ RICS.
To find out more call Robert Dale for a discussion on 01603 629421 or visit our website at www.danielconnal.co.uk