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Six Degrees of Separation: The Thorny Conflict of Interest Issue
- Sep 15, 2023
- Latest News
by Robert Dale.
Robert is an RICS Registered Expert and Senior Partner at Daniel Connal Partnership
You’ll be familiar with the Six Degrees of Separation rule: essentially everyone on the planet is on average six or fewer personal connections away from each other. For those working as expert witnesses, the word fewer takes on greater significance when considering potential conflicts of interest.
It is a fundamental 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. Since the seminal case of the Ikarian Reefer, in 1993, where Mr Justice Cresswell, laid out what is considered to be the classic statement of the duties and responsibilities of expert witnesses, there have been various codes of conduct and ethical rules published confirming that the overriding and primary duty of an expert witness is to be independent and impartial.
But it is not sufficient just to be independent and impartial. An expert witness needs to be seen to be independent and impartial, ensuring they unambiguously state any potential conflict of interest.
So how does an expert determine whether they have a potential conflict of interest? If the expert has a personal or pecuniary interest in the outcome of the case a conflict of interest is clear, but it becomes less so where personal relationships are concerned.
Consider: an instruction arrives asking you to act as an expert witness in a case where the other party is being represented by a solicitor you know well. Actually, you’re already working on another case for them! Should you say yes?
It may feel a little uncomfortable, but there is not necessarily a conflict of interest to stop you from taking on the case.
Another instruction arrives. This time it’s from a solicitor who has instructed you half a dozen times this year already. You have built a great working relationship over the years, enjoy each other’s company, and have lots in common, you even attended a charity golf day together recently, playing on the same team. Is there a conflict of interest here?
You may be entirely confident that you can fulfil your role impartially, but a challenge in court, or even a suggestion that you are too close to the instructing party, that your evidence is being prepared solely for their benefit might be tricky - even difficult - to defend.
Inevitably, most experts have gone around the block a bit, and been widely active in their sector. Over the years and while gaining the necessary knowledge and experience they will have worked with numerous individuals and a multitude of companies naturally developing and actively nurturing a significant professional network in their own field.
Even expert witnesses are allowed a life outside work; and professional work relationships can expand into friendships, wider memberships of clubs and societies, support for charities, etc.
So, when does having worked with, or even knowing well outside work, one of the parties to a case create a conflict of interest? If you visualise the Venn diagram created when choosing an expert witness from a group limited by specialism and local geography, connections are virtually inevitable, and that six degrees of separation probably reduces to two or three at the most. We live in a 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’ share portfolio might include those of one of the companies involved in the dispute?
The Traffic Light system introduced by the Royal Institution of Chartered Surveyors (RICS) in their guidance note, Conflicts of Interest for Members acting as Dispute Resolvers, might well be a system that experts as well as dispute resolvers, could adopt when considering whether a conflict of interest might exist or be perceived to exist.
The traffic light system considers various scenarios offering guidance on when 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 can’t cover every eventuality. It should also be remembered that a limited number of suitable experts in a specific industry or geographical location, resulting in a conflict of interest won’t necessarily make an expert’s evidence inadmissible, although, the expert will want to be certain they have clearly disclosed any possible conflict of interest. However, the RICS guidance note will be a valuable reference tool to guide us in making such disclosures.
Robert Dale is an 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 danielconnal.co.uk