Appointing an expert

Expert evidence is commonly used in insurance and reinsurance disputes to assist the court when the case involves matters on which the judge does not have the requisite technical expertise. Experts are under a duty to assist the court, rather than the party instructing them. So what happens where an insurer tries to instruct an expert previously retained by the insured? That was the issue for the court in Wheeldon Brothers Waste v Millennium Insurance.

The case involved a fire at a waste processing plant. A forensic expert visited the next day to carry out the usual investigations – inspecting the scene, interviewing witnesses etc. He then reported back to the insurers as to the likely cause of the fire. Based on his report the insurer denied liability for the claim. Subsequently the insured instructed the same expert to assist with its proposed recovery against third parties and again the expert produced a report on causation. When the insured subsequently commenced proceedings against the insurer, the insurer sought to instruct the expert and the insured sought to prevent that. The insured argued that the expert had a duty to preserve confidentiality, including a duty not to act for the other side.

The court held that there was no proper basis on which it should deprive the insurer from relying on the expert. This was for a number of reasons. The expert had undertaken a contemporaneous investigation and so was in “the best possible position” to assist the court. There had been no overlap in what the parties had asked the expert to do, since the insurer had no interest in whether a claim could be brought against third parties. Most importantly, there was no evidence that the insured had passed confidential information to the expert and certainly no risk that any such information would be passed on to the insurer.

In this case both parties were able to use the same expert (at different stages of the case) but the decision is fact specific. Depending on the nature of the dispute, particularly in property insurance and forensic science experts, there may be a very small pool of experts available to the parties and it is essential to be quick off the mark to instruct your preferred candidate.