Court refused to strike out Plaintiff’s expert report on basis that Defendant had previously consulted same expert

In the recent Hong Kong High Court decision of Daimler AG (formerly known as Mercedes-Benz AG) v Leiduck, Herbert Heinz Horst & Anor, the court dismissed the Defendants’ application to strike out the Plaintiff’s expert’s report on Russian law on the ground that he was unsuitable to be an expert. The expert in question was a partner in the law firm White & Case, Moscow. The Defendants’ objection was that they had consulted another partner of White & Case, Moscow (before the Plaintiff) with a view to engaging him as expert in the same proceedings. Although not a construction case, it is nevertheless relevant to experts in the construction field, given the relatively small community of construction experts.

The court held that generally there is no property in an expert witness, subject to the protection of legal professional privilege and confidence. It said that the mere fact an expert had been consulted, and had in the course of such consultation, been provided with privileged or confidential information by one party who had decided not to call him, would not prevent the expert from subsequently giving an opinion to and testifying for the opposite party on the same subject-matter, provided that the expert’s opinion was not based, or inseparably dependent, on the privileged or confidential material provided to him by the party who approached him first, so that he can (and does) give evidence without having to refer to or deploy any such privileged or confidential material.

The question, the court said, boiled down to whether privileged or confidential information had been provided by the Defendants’ solicitors to White & Case, Moscow in the course of their communications and, if so, whether the expert had disclosed or misused such information in acting as expert witness for the Plaintiff. In this regard, to attach privilege or confidentiality to a piece of information imparted in a communication by a solicitor with a third party on behalf of his client, that information must itself be information for which privilege can be claimed by the solicitor’s client against others or which has the essential quality of being confidential. The third party cannot be restrained from receiving the same information from another client or obtaining it from public avenues or from using the information so received or obtained for such other client, merely because he had been given it first by the earlier client.

In the present case, the court was not persuaded that information for which the Defendants could claim privilege or confidence had been imparted by the Defendants’ solicitors to White & Case, Moscow or that the expert had disclosed or misused any privileged or confidential information of the Defendants in acting as the Plaintiff’s expert witness or had taken a stance against the Defendants or compromised his impartiality.

The expert evidence in this case related to general questions of Russian law and practice in relation to the registration of companies and the court could not see that questions on which an expert would require contribution, or was likely to receive instruction or information from the party retaining him, was that for which that party could claim privilege or confidence.