Conflicts of interest are one of the most common reasons an expert's evidence is challenged — and one of the most preventable, provided they are identified and disclosed early. This piece sets out a practical framework for spotting conflicts before they become a problem, and for handling them correctly when they do.
What counts as a conflict
A conflict is not limited to the obvious case of an expert who has previously worked for the opposing party. It extends to any circumstance that could reasonably affect — or be perceived to affect — the expert's independence and impartiality. In the GCC construction sector, where the pool of specialist quantum, delay, and structural experts is relatively small and long-standing professional relationships are common, this net catches more situations than newcomers to the market often expect. Relevant circumstances include:
- Prior engagement by, or against, either party on a related or unrelated matter
- An ongoing commercial relationship with a party, a party's parent company, or a key witness
- Prior involvement in the underlying project — as a consultant, certifier, or adviser — before the dispute arose
- A personal or professional relationship with counsel, the tribunal, or another expert on the case
- Any financial interest in the outcome, however indirect
The test is not simply whether the expert believes they can remain impartial. It is whether a reasonable, informed observer would have doubts about that impartiality. RICS guidance is explicit on this point: even a potential conflict, not just an actual one, must be reported as soon as it becomes apparent — and if the tribunal might attach less weight to the evidence as a result of the circumstances, the client must be told.
When to check
Conflict checking is not a one-time exercise carried out at the moment instructions are accepted. It needs to happen:
- Before accepting instructions, as a formal part of the engagement process
- Throughout the assignment, since new conflicts can emerge — a related matter arising, a change in the expert's firm's client relationships, a previously undisclosed connection surfacing during document review
- At the point disclosure is made to the tribunal, where the expert should be prepared to answer questions about independence directly
Firms working across a concentrated regional market — where the same contractors, consultants, and legal teams recur across multiple disputes — benefit from a formal conflict register maintained at the firm level, checked systematically against every new instruction rather than relying on individual recollection.
What to do when a conflict emerges after instructions are accepted
A conflict identified after the engagement has begun is not, in itself, fatal to the expert's involvement. What matters is how it is handled. The correct sequence is:
- Stop and assess. Before doing anything else, determine whether the circumstance is genuinely capable of affecting independence, or perceived independence. 2. Disclose immediately. The conflict must be reported to the instructing client without delay — not held back until the report is due, and not managed quietly in the hope it will not surface. 3. Let the client and tribunal decide. In most cases, disclosure allows the instructing party, and where relevant the tribunal, to make an informed decision about whether the expert should continue. Attempting to manage a conflict unilaterally, without disclosure, is the choice most likely to cause lasting damage to the expert's credibility and the client's case.
Why disclosure is almost always the safer course
There is a natural commercial instinct to avoid disclosing a conflict that might cost the expert the instruction, or cost the client a preferred expert. That instinct should be resisted. A disclosed conflict, properly assessed, is rarely fatal — many are manageable, or turn out on examination not to be conflicts at all. An undisclosed conflict that surfaces later, particularly during cross-examination, is a different matter entirely: it does not just damage the expert's credibility on the point in question, it invites the tribunal to view the entirety of that expert's evidence with suspicion.
A note for lawyers instructing experts
Part of due diligence when selecting an expert should be a direct, explicit conversation about potential conflicts — not simply asking "are you conflicted?" but working through the categories above with the candidate expert. An expert who engages seriously and transparently with that conversation, rather than giving a quick reassurance, is generally the expert worth instructing.
Part 5 moves to the other side of the relationship: what a well-constructed letter of instruction should contain, and why the quality of instructions shapes the quality of the eventual report.