Peter Godwin, Craig Shepherd, Tse Wei Lim and Charlene Kong
For the first time, the Malaysian High Court has found that party-appointed experts owe implied duties to the court. It is well-established that expert witnesses owe a duty to assist courts and arbitrators, but this is typically understood as requiring experts to provide their evidence independently and impartially. The Court’s decision in Linsun Engineering Sdn Bhd v Shin Eversendai Engineering Sdn Bhd expands this duty by further requiring experts to ensure their ability and availability to give evidence at trial.
This is significant as experts in Malaysian disputes may now be personally sanctioned for a failure to testify at trial, a risk which experts should closely take note of.
Shin Eversendai Engineering Sdn Bhd (Shin) engaged Linsun Engineering Sdn Bhd (Linsun) to supply manpower and tools for the erection and dismantling of scaffolding in a power plant project in Malaysia. Having commenced work, Shin terminated its contract with Linsun, prompting Linsun to commence a claim against Shin before the Malaysian High Court for the value of completed work.
Shin appointed two quantity surveying experts in the court proceedings and submitted a joint report by them. However, following the close of Linsun’s case, Shin applied to file a fresh expert report by a replacement expert as Shin’s original experts were either uncontactable or unable to testify due to conflicting work commitments.
High Court Decision
The Court dismissed Shin’s application based on the general prohibition against parties calling fresh experts after trial and the potential prejudice Linsun would suffer if Shin’s application was granted.
Notably, the Court went further to find that Shin’s experts had by their conduct breached their implied duties to the court. It is a well-established principle under Malaysian law – and other common law jurisdictions – that experts owe an overriding duty to assist the Court on the matters within their expertise. The Court found that it was necessary to imply into this two additional duties for experts, namely:
- a duty to ensure that the instructing solicitor can contact them for the purpose of the trial in question; and
- a duty to ensure that they can give evidence in court, either physically or virtually.
The Court viewed that it was necessary to imply these duties to avoid an appointing party being unfairly prejudiced by its expert’s own failure or refusal to attend trial. Thus, Shin’s experts breached their implied duties when they became uncontactable or had refused to testify due to conflicting work commitments, particularly since one could resort to testifying virtually to accommodate work schedules.
Despite finding that Shin’s experts had breached their implied duties to the Court, the Court ultimately did not sanction Shin’s experts as their breaches did not prejudice Linsun, which did not rely on expert evidence such that the determination of expert evidence fell away.
Linsun Engineering introduces a new dimension to expert duties in Malaysian law disputes. The expanded duty restricts the manner in which experts arrange their practices, and imposes a positive obligation on experts to ensure that they are able and have capacity to testify at trial. Although Linsun Engineering considered this expanded duty within the context of Malaysian litigations, this common law refinement could arguably also extend to Malaysian-seated arbitrations in which expert evidence is frequently used.
Such a duty is, however, not new in Malaysia. Rule 10.4 of the AIAC Rules 2021 (see our analysis here) prescribes a similar requirement for prospective arbitrators to ensure their capacity to determine the case in a prompt and efficient manner, mirroring the diligence duty under the initial draft of ICSID’s Code of Conduct for Adjudicators in Investor-State Dispute Settlement.
Notably, the expanded duty in Linsun Engineering presents significant implications for experts in Malaysian law disputes. Generally, an expert’s failure to testify at trial would not amount to a breach of the expert’s duty, and would be addressed by reducing the weight of the non-testifying experts’ evidence or drawing an adverse inference against the expert’s appointing party. However, post-Linsun Engineering, a failure to testify may risk an expert being personally sanctioned by:
- a reference to their professional bodies for disciplinary action. This is usually considered in serious circumstances of experts having acted partially, providing untruthful evidence or where their conduct raises questions of fitness for practice; or
- being made personally liable for costs. This is normally considered where an expert has acted with flagrant reckless disregard of their duties to the court.
Given the serious risks, experts in Malaysian law disputes should give closer attention to their ability and availability before accepting briefs. It will be interesting to see how future Malaysian cases consider the expanded duty in Linsun Engineering, particularly how much allowance experts will be given in managing their availability for trial.
For further information, please contact Peter Godwin, Craig Shepherd, Tse Wei Lim, Charlene Kong or your usual Herbert Smith Freehills contact.
Herbert Smith Freehills LLP is licensed to operate as a Qualified Foreign Law Firm in Malaysia. Where advice on Malaysian law is required, we will refer the matter to and work with licensed Malaysian law practices where necessary.