Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 110
A v X Y & Z and Secretariat
Consulting v A
by Expert Evidence - www.expert-evidence.com
Expert Evidence have summarised the case below to highlight the issue of an experts duty to
the Court. In the ‘secretariat’ case; the judge ruled that secretariat cannot be a consultant to
both parties. This was however a contractual relationship issue, not the fact it was a single
expert used by both parties.
These reported cases are two stages of the same case
heard in the last 12 months. The 昀椀rst was in the Technology and Construction Court (‘TCC‘), the second,
the Secretariat Consulting case, in the Court of Appeal. The case concerns the duty, 昀椀duciary or otherwise, that an expert owes to his instructing client
and the question of con昀氀ict of interest which can
arise when engaging multi-disciplinary companies.
The application was brought in connection with two
ongoing arbitrations, so the hearing was heard in
private and the parties granted anonymity in the
judgement.
disruption to the project including any liability they
might be found to have had in the Contractor Arbitration. Further they objected to the appointment
of the expert on the grounds that they had already
appointed an expert from Secretariat for the Contractor Arbitration, and that there would be a con昀氀ict of interest. Although the experts would come
from di昀昀erent subsidiary companies of Secretariat,
the issues being considered in the two arbitrations
would overlap and concerned the same underlying
dispute and that there would be a con昀氀ict of interest.
Con昀椀dentiality is a virtue of the loyal,
as loyalty is the virtue of faithfulness.”
Case Description
The case concerned the developer of a large petrochemical plant which in 2012 and 2013 appointed a
consultant to provide engineering, procurement
and construction management (‘EPCM‘) services in
relation to that development project. The appointment was worth US$2 billion. A contractor was also
appointed for the construction of certain facilities
at the plant, the works totalling US$117 million.
Disputes arose between the developer and the contractor who had incurred additional costs because
of delays. Some of these delays were caused by the
late release of issued-for-construction drawings by
the EPCM contractor.
Edwin Louis Cole
The EPCM consultant and Secretariat argued that
the experts were employed by separate parts of the
Secretariat group, that they were based in di昀昀erent
geographical regions, in di昀昀erent disciplines and
that there were information barriers (electronic and
physical) within the group to prevent the seepage
of con昀椀dential material. The developer proceeded
to apply to the TCC for an interim injunction preventing Secretariat from providing its expert to the
EPCM consultant. This was based on two grounds:
breach of 昀椀duciary duty and breach of con昀椀dence.
The TCC granted the injunction, reasoning that
Secretariat’s original appointment on the Construction Arbitration carried with it a 昀椀duciary duty of
loyalty to the developer. The various parts and companies within the Secretariat group comprised a
whole- they were marketed as one global group and
the duty of loyalty was owed by all the corporate
parts of Secretariat.
The contractor initiated an ICC arbitration against
the developer in relation to those additional costs
(the ‘Contractor Arbitration’). In March 2019 the
developer instructed a delay expert from the Asian
subsidiary of Secretariat, an international 昀椀rm offering litigation support services, to advise and act
for it in connection with the arbitration. The parties signed a formal letter of engagement which,
amongst other things, con昀椀rmed that Secretariat
had no con昀氀ict of interest and would maintain that
position for the duration of the engagement.
The Judgement
Secretariat took their case to the Court of Appeal
which unanimously upheld the TCC’s judgement,
though not on the grounds that Secretariat owed a
昀椀duciary duty of loyalty. Indeed the Court expressed
reservations on the implications of doing so, noting
that the term was “freighted with a good deal of legal
baggage”. There was an express clause in the contract
for the Contractor Arbitration which prohibited
A few months later the EPCM contractor started its
own ICC arbitration in London against the developer for non-payment of fees (the ‘EPCM Arbitration’),
and their solicitors also sought to engage an expert
from Secretariat to provide quantum services to
help with their arbitration. The developers counterclaimed against the EPCM consultant for delay and
EXPERT WITNESS JOURNAL
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