Handling a potential conflict of interest
What should you do if you discover you may have a conflict of interest?
In 2006 the leading case of Toth -v- Jarman  EWCA Civ 1028 laid down some basic principles about expert independence. It also emphasised the importance of disclosure of any potential conflict of interest at the earliest opportunity. The Court of Appeal held that a conflict of interest did not necessarily disqualify an expert witness. The key question was whether the expert’s opinion was independent.
The Court of Appeal said that: ‘... 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. This means it is important that a party who wishes to call an expert with a potential conflict of interest should disclose details of that conflict at as early a stage in the proceedings as possible... ’. There is, however, no automatic disqualification merely because the expert has some connection with a party. This is at the discretion of the court; it will decide on a case-by-case basis.
However, there is a far greater risk that a relationship will give rise to a presumption of bias if there is a failure to disclose it. It is therefore important to notify the court at the earliest possible stage if there is any relationship that might have a bearing on one’s independence.
The Golden Rule
The golden rule is that, to prevent any suggestion of bias, experts should avoid accepting instructions from employers, family, friends or colleagues. However, where they do so, they should make sure this fact is known to the court and should take care to be, and to be seen to be, independent throughout.