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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd  EWHC 474 (Ch) (07 March 2011)
Cite as:  EWHC 474 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| Meat Corporation of Namibia Limited
|- and -
|Dawn Meats (UK) Limited
Robert Howe QC and Mark Vinall (instructed by DLA Piper UK LLP) for the Defendant
Hearing dates: 16th February 2011
Crown Copyright ©
Mr Justice Mann :
a) Market conditions in 2007-2009, including the EU market for beef, the position of MeatCo within that market and the role of certain Smithfield traders within that market.
b) Pricing – the method for ascertaining the market price, factors affecting the market price, whether new season Namibian beef arrived late in the UK in 2008, the impact of allegedly late arrival of that beef and whether sales of MeatCo product by Dawn were below market price.
c) Market practices or industry standards relevant to the method in issue, including human resources necessary to conduct an agency, stock management, invoice and debtor management, forward selling, sales of different cuts, branding, customer complaints, dealing with associated or related companies and "whether Dawn fails to conduct the agency in accordance with the standards of a reasonable meat agent in the respects alleged by MeatCo".
"There may also be a conflict of interest with my other activities."
She therefore regretted she would not be able to assist.
"I apologise again that I cannot accept this role, but do stress that I have not, and will not, divulge any of our discussions. Please be assured that I have no involvement with your case and would not discuss it with anyone."
" I did speak to Sean and have agreed that there would probably be a conflict of interest were I to accept the role as industry expert' with regard to your case with MeatCo.
Although financially tempting, I have declined the commission, in anticipation of an ongoing role with the Dawn Meat group.
It should be feasible for me to represent Dawn Meats at IMTA for the monthly council meetings, providing I am working for Dawn Meats, however the President will require a written request from Dawn Meats, followed by an acceptance vote from the IMTA Council, which should be forthcoming …
I suggest that I attend a minimum of 7 of the monthly meetings annually and that Dawn Meats pays me a minimum annual retainer of £3500 pa to cover the basic 7 meetings, and that any further meetings carried out on the half of Dawn Meats should be charged at the daily rate of £500 per day, plus travel and direct telephone expenses.
I hope you agree to the above and that you will propose with whom I should liaise and report to, and who, in your organisation would be interested in world meat market information as I hope to be able to provide. Equally I will remain available to work with your trainees as proposed, on the same fee basis, unless otherwise agreed. "
The basis of the present challenge
Privilege and confidentiality
"I consider that the nature of the work which a firm of accountants undertakes in the provision of litigation support services requires the court to exercise the same jurisdiction to intervene on behalf of a former client of the firm as it exercises in the case of a solicitor. The basis of that jurisdiction is to be found in the principles which apply to all forms of employment where the relationship between the client and the person with whom he does business is a confidential one. A solicitor is under a duty not to communicate to others any information in his possession which is confidential to the former client. But the duty extends well beyond that of refraining from deliberate disclosure. It is the solicitor's duty to ensure that the former client is not put at risk that confidential information which the solicitor has obtained from that relationship may be used against him in any circumstances."
"My Lords, the question in this appeal is whether, and if so in what circumstances, a firm of accountants which has provided litigation support services to a former client and in consequence has in its possession information which is confidential to him can undertake work for another client with an adverse interest."
He returned to the point at page 234c-d:
"The duties of an accountant cannot be greater than those of a solicitor, and may be less, for information relating to his client's affairs which is in the possession of a solicitor is usually privileged as well as confidential. In the present case, however, some of the information obtained by KPMG is likely to have attracted litigation privilege, though not solicitor-client privilege, and it is conceded by KPMG that an accountant who provides litigation support services of the kind which they provided to Prince Jefri must be treated for present purposes in the same way as a solicitor."
"Whether founded in contract or equity, the duty to preserve confidentiality [on the part of a solicitor] is unqualified. It is a duty to keep the information confidential, not merely to take all reasonable steps to do so. Moreover, it is not merely a duty not to communicate the information to a third party. It is a duty not to misuse it, that is to say without the consent of the former client to make any use of it or to cause any use to be made of it by others otherwise than for his benefit…[the former client] is entitled to prevent his former solicitor from exposing him to any avoidable risk; and this includes the increased risk of the use of the information to his prejudice arising from the acceptance of instructions to act for another client with an adverse interest in a matter to which the information is or may be relevant."
"It is in any case difficult to discern any justification in principle for a rule which exposes a former client without his consent to any avoidable risk, however slight, that information which he has imparted in confidence in the course of a fiduciary relationship may come into the possession of a third party and be used to his disadvantage. Where in addition the information in question is not only confidential but also privileged, the case for a very strict approach is unanswerable. Anything less fails to give effect to the policy on which legal professional privilege is based. It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. It is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.
Many different tests have been proposed in the authorities. These include the avoidance of 'an appreciable risk' or 'an acceptable risk'. I regard such expressions as unhelpful: the former because it is ambiguous, the latter because it is uninformative. I prefer simply to say that the court should intervene unless it is satisfied that there is no risk of disclosure. It goes without saying that the risk must be a real one, and not merely fanciful or theoretical but it need not be substantial."
"The reason is because the Court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the Court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him."
"Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the parties concerned. That means that a great deal of the communications between the expert witness and the lawyer cannot be given in evidence to the court. If questions were asked about it, then it would be the duty of the judge to protect the witness (and he would) by disallowing any questions which infringed the rule about legal professional privilege or the rule protecting information given in confidence – unless, of course, it was one of those rare cases which come before the courts from time to time where in spite of privilege or confidence the court does order a witness to give further evidence." (page 1385D-E)
"Were it otherwise, as Lord Denning MR had indicated, in a sphere of a small number of specialists it might be possible for one party to buy up all the possible experts, and clearly such a situation is not right." (page 1387B-C)
"The question in this case is whether or not that principle [viz. no property in a witness] applies to expert witnesses. They may have been told the substance of a party's case. They may have been given a great deal of confidential information on it. They may have given advice to the party. Does the rule apply to such a case?"
He went on to hold that it did. I think that if the principles from Prince Jefri were to apply to expert witnesses then the resolution of Harmony Shipping would have involved the answer going the other way. Of course Prince Jefri was not an authority available to the Court of Appeal in Harmony Shipping. However, so far as expert witnesses are concerned it does fortify my conclusion that the Prince Jefri principles do not apply merely because privileged information has been given to the expert witness, even if it has been given in some significant quantity.
"To my mind no such contract, express or implied, is to be found. At most there was a statement by Mr Davies of his practice, namely, that having been instructed by one side, he would not accept instructions from the other. That is a statement of proper professional practice. It is no doubt very valuable in order to save embarrassment to him and others like him when they are placed in a situation like this: and handwriting experts often are because there are not many of them. But it is not a contract. It is not a binding contract at law, express or implied. But I would go further. If there was a contract by which a witness bound himself not to give evidence before the court on a matter on which the judge said he ought to give evidence, then I say that any such contract would be contrary to public policy and would not be enforced by the court."
Mr Taylor relied on the reference to professional practice as indicating Lord Denning's support for a position in which the expert should not act for a second party having acted for the first. He says that that approval of the "professional practice" indicates what a court should do when faced with an expert who turns out to have acted for both sides, and that the same should be applied to the present case where the expert was not actually engaged to the one side before agreeing to act for the other. I do not think that Mr Taylor is right. Lord Denning was approving a sensible, and honourable, position adopted by the expert. As Lord Denning observed, it avoids professional embarrassment. It may also avoid any practical difficulties because, having refused to act for both sides, both sides will usually adopt the sensible course and go and find other experts. However, that principle does not mean that the expert is automatically disqualified – see the result in Harmony Shipping. It must follow that it does not demonstrate that the court should bar the expert simply because he or she has acted for both sides. Much less does it demonstrate that the court must not rely on the expert where he or she has not acted for the first side, but has merely discussed the case.
Lack of independence
"Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible. The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. "
"The following principles emerge from these authorities:
(i) It is always desirable that expert should have no actual or apparent interest in the outcome of the proceedings.
(ii) The existence of such an interest, whether as an employee of the parties or otherwise, does not automatically render the evidence of the proposed expert inadmissible. It is the nature and extent of the interest or correction that matters, not the mere fact of the interest or correction.
(iii) Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.
(iv) The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether or not an expert witness should be permitted to give evidence.
(v) The questions which have to be determined whether (i) that the person has lowered expertise; and (ii) he or she is aware of their primary duty to the court if they give expert evidence and willing and able despite the interest or connection with the litigation or party thereto, to carry out that duty.
(vi) The judge will have to weigh the alternative choices openly if the expert's evidence is excluded, having regard to the overriding objectives of the CPR.
(vii) If the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence. "
"Where an expert has a material or significant conflict of interest, the court is likely to decline to act on his evidence, or indeed to give permission for his evidence to be adduced…[at page 102]…The conflict of interest could be of any kind…ultimately, the question of what conflict of interest falls within this description is a question for the court, taking into account all the circumstances of the case…[at page 109]"
"I accept that neither section 3 of the 1972 Act nor the authorities under it expressly exclude the expert evidence of a friend of one of the parties, however, in my judgment, where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be. The question is one of fact, namely the extent and nature of the relationship between the proposed witness and the party."
"70. This passage seems to be us to be applying to an expert witness the same test of apparent bias that would be applicable to the tribunal. We do not believe that this approach is correct. It would inevitably exclude an employee from giving expert evidence on behalf of an employer. Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence. Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible. The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question the judge will have to weigh the alternative choices open if the expert's evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules."
Accordingly, the Liverpool case gives me no real guidance.
"The question whether someone should be able to give expert evidence should depend on whether (i) it can be demonstrated whether that person has relevant expertise in an area in issue in the case; and (ii) that it can be demonstrated that he or she is aware of their primary duty to the court if they give expert evidence."
May LJ said at page 842:
"As to questions of opinion and generally, I entirely agree with my Lord, the Master of the Rolls, that there is no overriding objection to a properly qualified person giving opinion evidence because he is employed by one of the parties. The fact of his employment may affect its weight but that is another matter."
i) He accused her of reneging on an agreement not to discuss the case with anyone very shortly after she agreed with MeatCo not to do so. This point proceeds on a wrong assumption as to the effect of what she said in her e-mail, and I have dealt with this above.
ii) He said that she recognised that there would be a conflict of interest in her acting for MeatCo in June 2010 - see her e-mail of 16th June. If there was a conflict of interest at all, she should not act for either party. I had difficulty in following this point. If a person's dealings with A mean that she would have a conflict of interest in dealing with B, it does not also follow that she would then have a conflict in acting for A.
iii) He said that her agreement to act for MeatCo, which she subsequently retracted, was sufficient to disqualify her as expert from the other side. This was despite the fact that he was driven to accept, as I think that he had to, that the agreement was only an agreement in principle and not a binding contract. In my view this does not reflect on her independence as a matter of principle – it would be illogical to think so, and Harmony Shipping shows that it cannot be the case. Nor do any special facts in this case mean that this somehow compromises her ability to be independent and assist the court in the way required of experts.
iv) He complains that they were told later than they could and should have been told that it was planned to call Mrs Burt-Thwaites as an expert witness, and the connections between her and Dawn were not made clear. As a pure matter of fact the timing point is probably true. Dawn knew in December that they would appoint her, but it was not until mid-January that MeatCo were told that she was to be engaged. Mr Howe told me that that was because his clients took their eye off the ball. Whether or not that is true, the mere timing point is not of itself sinister. So far as disclosing the connections is concerned, there is nothing in that either. I do not think that there is anything in the relationship between Dawn and Mrs Burt-Thwaites which required them to flag up the point in advance of her report (where, I am told, it was intended to refer to them in the normal way).
The confidential schedule