Conflict of intererst / Issues of Confidentiality

 

Question

We were engaged by the Defence to create a freport that was submitted to the court. Subsequently, we produced an addendum report for the Defence, based on additional evidence. However, the solicitor opted not to serve this addendum.

 

Recently, we have been contacted by the Prosecution. They have provided comparative evidence which is the same as what we used in our initial report for the Defence, meaning any report we create for the Prosecution would effectively replicate our previous work.

 

We are uncertain if the solicitor is aware of this new approach, but it's clear the CPS knows we authored the original report.

 

Answer

There is no property in a witness, including an expert witness, but there is likely to be a duty of confidentiality regarding the work previously done at the defence’s behest which potentially puts the expert in an awkward position if you are asked to replicate the same work for the prosecution.

 

We do not think that technically there is a conflict of interest, but you do have the choice whether to accept the instructions from the prosecution.

 

We feel that it would be best to avoid a perceived conflict of interest and issues regarding confidentiality and recommended that you decline to act on that basis.

 

However, if you did want to pursue the instruction, then you would be advised to seek clarification that there is no objection on the part of the defence to you responding to the prosecution’s approach. And assuming there is not, you can proceed.

 

You could also suggest that you are appointed as a Single Joint Expert for the case.