An English court recently refused to enjoin an expert witness from giving testimony against a Lloyd’s syndicate, despite that expert’s previous employment by the syndicate in an arbitration over similar issues with a different party. The subject of the expert’s testimony in this case related to the extent of coverage for losses arising from the 9/11 terrorist attacks under a reinsurance “Interlocking Clause” provision. Although the expert’s previous testimony on behalf of the syndicate did not involve the Interlocking Clause, the interpretation of that clause did arise in private meetings wherein the expert expressed disagreement with the syndicate’s interpretation. Subsequently, the syndicate’s opponent in the instant case employed the expert to give testimony on the Interlocking Clause. After the arbitration tribunal denied the syndicate’s request to exclude the expert, the syndicate sought injunctive relief from the court. The court rejected the syndicate’s argument that the expert unfairly possessed confidential information, including the syndicate’s potential cross-examination strategy. The court explained that there was no evidence that the expert had misused confidential information thus far, and that the expert’s alleged inability to recall details of the syndicate’s meetings rendered it unlikely that the expert would do so in the future. To the extent the syndicate lost the element of surprise with respect to its cross-examination strategy, the court was “not persuaded that the loss of such a forensic advantage amounts to damage which justifies the grant of an injunction which would interfere with the tribunal’s management of the arbitration.” A Lloyd’s Syndicate v. X, [2011] EWHC 2487 (Q.B. Comm. Ct. Oct. 3, 2011).
This post written by Michael Wolgin.
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