i) a contract with one of the companies for engineering, procurement and construction management ("EPCM") services;
ii) a contract with another company for EPCM services;
iii) a parent company guarantee and co-ordination deed, pursuant to which the parent company guaranteed the performance of the other third party companies under the terms of their EPCM agreements.
"(a) hold all Confidential Information in strict confidence and shall in any case protect such Confidential Information with no less diligence than that with which it protects its own confidential or proprietary information;
(b) take all precautions to ensure that the secrecy of the Confidential Information is preserved among its employees, agents and representatives …"
‘Confidential Information’ was defined as:
"any information in possession of [the solicitors] relating to its representation of its client that is disclosed to [the first defendant] or that [the first defendant] otherwise obtains in connection with its engagement for the provision of expert witness services."
"[The claimant] is pleased to confirm that it would like to engage you as an expert witness in the arbitration referenced above.
Your work on this engagement is to·be performed at the direction of our legal representatives in this matter [J]. [J] shall issue to you a letter of instruction shortly….
… your scope of works comprises the following:
• Familiarise yourself with the Project and the reference materials that [J or the claimant] will send to you from time to time;
• Propose a fit-for-purpose methodology for the determination of the delays to the Works under each of Package A and Package B;
• Identify and analyse each of the delay events that gave rise to delays to the Works, allocate a delay period to each delay event, and calculate the total delay under each of Package A and Package B;
• Identify and analyse the root cause for the delays;
• Reflect your opinions and analysis in a report;
• Meet with [the contractor’s] expert to the extent directed by the Tribunal and prepare any joint statements that may be required;
• Provide ad-hoc support to [the claimant] and its professional team in the arbitration; and
• Give oral evidence at the hearing.
You acknowledge that you are bound by the terms of the Non-Disclosure Agreement dated 15 March 2019 appended to this letter. You agree that you will treat all information, facts, matters, documents and all other materials that come to your attention as a result of this engagement as confidential (except insofar as you have to refer to them when setting out the substance of your instructions in your report).
[The claimant] is engaging you to provide expert services, led by [K]. It is agreed that [K] shall retain full responsibility for the work products for the duration of this engagement. In particular, [K] shall be responsible for the accuracy of the report and [K] shall be the testifying expert at the hearing.
You confirm that the work which is carried out in relation to this engagement will be [K’s] own and will not be delegated or sub-contracted to someone else. Where it is necessary or will be more cost effective to delegate some aspects of the work, you will inform [J], with copy to [the claimant], before involving anybody else, which aspects of the work are likely to be delegated, to whom they are likely to be delegated, their experience and their charge out rates. You agree that [K] will supervise and review all work carried out by others and take full responsibility for the end product, including the report.
You have confirmed you have no conflict of interest in acting for [the claimant] in this engagement. You will maintain this position for the duration of your engagement."
"Our firm has received enquiry from lawyers representing [the third party] on its potential dispute against [the claimant]. They have asked for quantum and delay experts (outside Asia) to assist them on the matter and have requested us to run a conflict check in relation to the same.
We have informed them that we (in Asia) are currently engaged by [the claimant] on a separate dispute on the same project (without revealing any further details) and they do not seem to consider it as a conflict. We told them that we would be speaking to you regarding the same as well.
Since [the third party’s] contract with [the claimant] is for EP and CM works for the full complex, and our engagement is in relation to the evaluation of delays on the construction subcontract for non-process buildings, our view is that working on the two matters (in different offices) would not constitute a "strict" legal conflict. Our firm also has the ability to set the engagements up in a manner that there is the required physical and electronic separation between the teams.
I was hoping to have a chat regarding this. Would you be available anytime today?"
"As you will have identified, [the third party] is ultimately responsible for a portion of the delay claims in the [Works Package] arbitrations. While the [Works Package] delay claim is only one of the many claims that [the claimant] will be pursuing, we believe that the knowledge you and your team have acquired on this project will be invaluable for the delay analyses that will be required in the [EPCM] arbitration."
"Thank you for notifying us that [the third party] has engaged [M] of [the defendants] to act as its quantum expert in the arbitration, and that he is "already working" on the matter.
As notified to you on 1 March 2020, [the claimant] have engaged [the defendants] on the Project and [K] (who holds a senior position within [the defendants]) has been actively investigating delay claims [the claimant] may have in the arbitration. [K] has been supported in his engagement by number of people within [the defendants]. The work product that has been created by [the defendants] is likely to form a part of the evidential record in this arbitration. As you would expect, [the defendants] ha[ve] been privy to confidential information during the course of their engagement..."
Further information was sought as to the defendants’ appointment and S stated:
"We reserve our client’s rights in this matter, including the right to challenge [the third party’s] appointment of [the defendants]. In these circumstances, please can you confirm whether [the third party] will suspend any engagement with [the defendants] until [the claimant] has had the opportunity to consider the issues more thoroughly with the benefit of the information that it requests in this email…"
"As stated in the CMC, [the third party] do not see the use of [the defendants] as a problem. First and foremost, each expert has a duty to act independently and to assist the tribunal. Secondly, the expert is not the company – it is the individual. Thirdly, in any event, [K] and [M] are experts in different disciplines and are based in completely different geographic regions. Fourthly, consultancy companies like [the defendants] maintain confidential information barriers between experts and their teams precisely to avoid transfer of any confidential information…
[The claimant] is not entitled to ask [the third party] to suspend its engagement of [M], nor is it appropriate for [the claimant] to ask [the third party] to do so. Indeed we are concerned that [the claimant] is seeking to distract [the third party] from its work on pleading its case by 23 March 2020 and/or is now seeking to invent an issue in the hope of derailing the tribunal’s timetable
i) whether the Court has jurisdiction to deal with the application on its merits and, if so, whether it should exercise such jurisdiction;
ii) whether independent experts, who are engaged by a client to provide advice and support in arbitration or legal proceedings, in addition to expert evidence, can owe a fiduciary duty of loyalty to their clients;
iii) whether, on the evidence before the Court, the claimant is entitled to a fiduciary obligation of loyalty from the first and/or second and /or third defendants;
iv) whether there has been, or may be, a breach of any duty of loyalty or confidence;
v) if so, whether the Court should exercise its discretion and grant the injunction.
"The validity and interpretation of this Agreement, the rights and obligations of the parties and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales. The parties irrevocably agree that the courts of the Abu Dhabi Global Market shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims)."
"A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; …he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal …
A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to the other … This is sometimes described as "the double employment rule." Breach of the rule automatically constitutes a breach of fiduciary duty …"
"Where the court’s intervention is sought by a former client … the court’s jurisdiction cannot be based on any conflict of interest, real or perceived, for there is none. The fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer. Thereafter the solicitor has no obligation to defend and advance the interests of his former client. The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence."
And at p.234H:
"It is otherwise where the court’s intervention is sought by an existing client, for a fiduciary cannot act at the same time both for and against the same client, and his firm is in no better position. A man cannot without the consent of both clients act for one client while his partner is acting for another in the opposite interest. His disqualification has nothing to do with the confidentiality of client information. It is based on the inescapable conflict of interest which is inherent in the situation."
"So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. 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 …
"The question in this case is whether or not that principle applies to expert witnesses …
Many of the communications between the solicitor and the expert witness will be privileged … Subject to that qualification, it seems to me that an expert witness falls into the same position as a witness of fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts."
"There is no property in an expert witness as to the facts he has observed and his own independent opinion on them. There being no such property in a witness, it is the duty of a witness to come to court and give his evidence in so far as he is directed by the judge to do so."
"… it is not contested that Mrs Burt-Thwaites was given some privileged and confidential information. However I do not think that the application of the strict test in, and the strict requirements in, Prince Jefri should be imposed simply because of that fact alone. The facts of Prince Jefri were striking. First, the accountants had acted like solicitors. Second, unlike the present case, they were engaged to provide services, and they obtained their information in that context. Third, the information was capable of being very damaging to Prince Jefri. Fourth, the accountants were essentially in the same position as solicitors in relation to that information. In those circumstances what the House of Lords was protecting was a quasi-solicitor/client relationship and all the disclosure that went with it. It is that relationship which is so serious and significant as to attract the disabilities identified in Prince Jefri and to require the heavy burden which the Committee held to apply."
"Those cases demonstrate that on certain facts an expert should not be permitted to act because it is likely that the expert will be unable to avoid having resort to privileged material that he should not resort to. Stopping him from acting was therefore seen to be necessary in order to protect the privilege. Where the use of privileged material is inevitable the court will intervene."
"I do not therefore consider the facts of the case to be analogous to the facts of Prince Jeffri Bolkiah v KPMG  AC 222 where KPMG carried out very extensive litigation support services; see p.229 C-E of the report. It is appropriate that in such a case, having regard to the scope of such litigation support services, the burden should be on the solicitor (or other provider of extensive litigation support services) to show that there is no risk of confidential or privileged information being misused. It does not follow that where an expert is engaged to provide his view of the meaning of a clause that the same stringent test should apply."
" There is no longer any scope, if indeed there ever was, for contrasting the duty owed by an expert to his client with a different duty to the court, which replaces the former, once the witness gets into court. In response to Lord Woolf’s recommendations on access to justice the CPR now spell out in detail the duties to which expert witnesses are subject including, where so directed, a duty to meet and, where possible, reach agreement with the expert on the other side. At the end of every expert’s report the writer has to state that he understands and has complied with his duty to the court. Where an expert witness is retained, it is likely to be, as it was in the present case, on terms that the expert will perform the functions specified in the CPR. The expert agrees with his client that he will perform the duties that he owes to the court. Thus there is no conflict between the duty that the expert owes to his client and the duty that he owes to the court…
 Thus the expert witness has this in common with the advocate. Each undertakes a duty to provide services to the client. In each case those services include a paramount duty to the court and the public, which may require the advocate or the witness to act in a way which does not advance the client’s case. The advocate must disclose to the court authorities that are unfavourable to his client. The expert witness must give his evidence honestly, even if this involves concessions that are contrary to his client’s interests. The expert witness has far more in common with the advocate than he does with the witness of fact."
i) In principle, an expert can be compelled to give expert evidence in arbitration or legal proceedings by any party, even in circumstances where that expert has provided an opinion to another party: Harmony Shipping.
ii) When providing expert witness services, the expert has a paramount duty to the court or tribunal, which may require the expert to act in a way which does not advance the client’s case: Jones v Kaney.
iii) Where no fiduciary relationship arises, having regard to the nature and circumstances of the expert’s appointment, or where the expert’s appointment has been terminated, the Bolkiah test based on an ongoing obligation to preserve confidential and privileged information does not necessarily apply to preclude an expert from acting or giving evidence for another party: Meat Traders; A Lloyd’s Syndicate; Wimmera.
i) The first defendant and the second defendant are wholly owned subsidiaries of P Inc.
ii) P Inc. and the third defendant are both owned in part by individual shareholders and in part by Q LLC.
i) The defendant group owes a fiduciary duty of loyalty to the claimant arising out of its engagement to provide expert services in connection with the Works Package Arbitration.
ii) The defendant group is in breach of that fiduciary duty of loyalty by accepting instructions to provide expert services in connection with the EPCM Arbitration.
iii) Pending trial of this matter, the claimant is entitled to a continuation of the interim injunction to restrain the defendants from providing expert services to the third party in connection with the EPCM Arbitration.
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