Fiduciary Duties of Litigation Experts: Secretariat Consulting Pte Ltd v A Company

In Secretariat Consulting Pte Ltd v A Company,¹ the Court of Appeal faced the novel question of whether a provider of litigation support and expert witness services owed fiduciary duties to its client. This case presented the court with a unique opportunity to set out a cogent roadmap for recognising fiduciary duties in novel, ad hoc circumstances. After a promising start, the court deemed it unnecessary to follow the fiduciary route, and shifted its focus on the parallel contractual no-conflict clause. The Court of Appeal's reluctance to expand on the High Court's fiduciary law analysis is regrettable, especially since it criticised this doctrine as nebulous and fraught with legal baggage.

An undisclosed company (“Company A”) was the developer of a large petrochemical plant. It engaged a project manager and a sub-contractor to carry out construction-related works for the plant. The sub-contractor brought arbitration proceedings against Company A, claiming additional costs due to delays and disruptions allegedly caused by the late release of the design drawings by the project manager (“Arbitration 1”).² Company A hired Secretariat Consulting Pte Ltd (“SCL”), a Singapore-based company, to provide arbitration support and delay expert services in relation to these claims.³ SCL ran a conflict check across all entities in its corporate group, and confirmed that it was conflict-free. The engagement letter included a confidentiality clause and expressly confirmed that SCL was and would remain free of conflicts of interest throughout its engagement.⁴

A few months later, the project manager also commenced an ICC arbitration against Company A for unpaid fees (“Arbitration 2”), partly relating to the delay at issue in Arbitration 1. Company A counterclaimed for the costs caused by the project manager's failure to supervise the sub-contractor and to deliver the design drawings in time.⁵ The project manager later retained Secretariat International UK Ltd (“SIUL”), a UK-based company, to provide arbitration support and quantum expert services.⁶ SCL and SIUL were both part of the Secretariat Group, an international organisation providing a wide range of litigation support, and delay and quantum expert services in construction arbitrations. SIUL ran a conflict check across the entire Secretariat group, which revealed SCL's prior engagement. When notified, SCL advised Company A that SIUL's engagement “would not constitute a ‘strict’ legal conflict”.⁷ Company A expressly disagreed and objected.⁸ Nevertheless, SIUL was retained by the project manager in Arbitration 2, while SCL continued its engagement for Company A in Arbitration 1.

Company A filed an urgent ex parte application with the High Court (the Technology and Construction Court) for interim injunction against SCL, SIUL and another entity in the Secretariat Group. The court granted interim relief, restraining the defendants from acting as experts for the project manager. Upon the return date, Company A filed an application for the continuation of the injunction. The main claim was that SCL owed Company A fiduciary and contractual duties to avoid conflicts of interest, which prevented SIUL, as a connected entity, from providing similar services against Company A in a related arbitration.

At first instance, Mrs...