Issues of disclosure in claims against accountants
In some claims against accountants, particularly those that deal with highly sensitive commercial information, there will be data and details which you do not wish to share with the courts. This may be because you have a duty to shareholders or other interested parties not to disclose certain classified information or it may be because you believe that disclosure would not be in the best interests of either you or the business.
However, non-disclosure can be a difficult tightrope to negotiate. For example, certain evidence strands related to sensitive financial information might be integral to the outcome of your case. In this situation it must be about balance and you and your professional negligence lawyer must decide how to best approach the situation while all the time protecting your best interests.
This question of what to disclose and what not to disclose is particularly important in dealing with expert witnesses, who must assess the available information and give their view. However, there are certain approaches which can help prevent your sensitive information from being unnecessarily disclosed to the courts.
Minimising the risk of unnecessary disclosure
There are certain steps that can be taken to minimise the chances of unnecessary disclosure of confidential financial and commercial information when making a claim against accountants. These include the following:
- Instruction of a shadow expert – shadow experts are non-testifying experts and are instructed under the premise that they are unlikely to provide either written or oral evidence to the Court. The reality is that shadow experts are usually only viable in very high value claims where fees are recovered from the other side.
- Ensuring clarity in the scope of the expert’s role – what are the advisory capacities of the expert and what are the reporting capacities? By making this clear immediately after instruction, it may be possible to control some extent the disclosure of sensitive information.
- Be clear in both instruction and cross examination – if professional negligence lawyers are clear about the exact nature of what they want from the expert witness and ask only questions related to this while steering clear of any potentially sensitive accounts, it may be possible to elicit only those views and findings which are integral to the claim.
- Only present evidence on which the case relies – unnecessary evidence – whether this is telephone calls, recorded conversations, or previous reports – can not only dilute the strength of the evidence presented, it can also inadvertently reveal sensitive information.
Healys LLP, claims against accountants
Has your accountant or auditor incorrectly analysed your accounts, missed deadlines, provided bad tax advice, failed to spot fraud, or incorrectly valued assets?
Healys LLP can provide prompt, authoritative and client-focused advice to help you decide whether you should proceed with a claim against your accountant. Call us today for more information.