Conflict of interest

Notes of conflicts of Interest

1. The Expert to disclose to [UCL Consultants] interests and activities, e.g. research activities, consultancies, directorships, appropriate shareholdings etc, and other interests as defined in point 3 below.

Why?: For example, the Expert is asked to prepare an expert opinion for a person who has suffered personal injury as result of a gas explosion caused, it is alleged, by the faulty installation of a gas pipe by Transco plc. Transco plc state that the fault lies not with them but with a faulty electricity cable next to the pipe. The electricity cable has 'sparked' and caused the gas explosion they allege. The electricity cable was laid by the Electricity Company plc. The Expert indicates in his/her report that the cause of the explosion is the fault of Transco plc, because Transco plc laid the gas pipe too near the electricity cable, when they could have easily laid it somewhere else. The Expert's evidence is the only technical evidence available to the Solicitors' client to indicate that the fault is with Transco. (To simplify the example, it is not possible to sue the Electricity Company plc.)

The Expert holds shares in Electricity Company plc. The Expert does not disclose this shareholding to UCL Consultants or to the Solicitors. The solicitors of Transco, however, check the Electricity Company plc's share register. They discover the Expert's shareholding. They wait until the trial of the personal injury matter. The bring forward evidence of the Expert's shareholding, to indicate that his/her evidence is not objective, etc.

Consequences (possible alternatives): The court

(a) disallows the evidence of the Expert,

(b) allows the evidence in of the Expert, but then decides not to attach any weight to

(c) penalise the Solicitors in costs for not checking out whether the Expert would be objective

(d) not allow the Solicitors to claim for some of the costs of the case (if the case is won)(e) decides the case against the Solicitors' client.

Result: the Solicitors might argue that the Expert (and therefore [UCL Consultants] as the contracting party) is negligent by disclosing this shareholding, and/or not being objective (which is the standard required by the court).

2. What should be provided to the Expert on every case s/he is instructed in

(a) copy of the Civil Procedure Rules, Part 35,

(b) the practice direction to that Part, and

(c) a copy of the current "CPR Code of Guidance for Experts and those Instructing them" prepared by the Academy of Experts.

3. Law society code of practice for expert witnesses engaged by solicitors. In this code of practice the Law Society provide the following comment on the "independence" of experts:

"Experts will disclose to solicitors at the start of each project any personal or financial or other significant circumstances which might influence work for the client in any way not stated or implied in the instructions, in particular

(a) any directorship or controlling interest in any business in competition with the client;

(b) any financial or other interest in goods or services (including software) under dispute;

(c) any personal relationship with any individual involved in the matter;

(d) the existence but not the name of any other client of the expert with competing interests.

Any actual or potential conflict of interest must be reported to the solicitor as soon as it is raised or becomes apparent and the assignment must be terminated.

It is the duty of an expert to maintain professional objectivity when advising a party, preparing a report for proceedings and when giving oral evidence in court."