Educating The Judges – Balancing Knowledge And Fairness

One of the challenges of dealing with large complex disputes (or even smaller disputes with technical complexity) is that the decision maker may have no understanding of the technical background to the dispute. It can be worrying for both parties, and a vast amount of time and effort can be taken up in educating the decision maker. Knowing what the decision maker knows is also important, because it is unfair if the judge takes into account something that is not disclosed to both sides. That is why there is the rule around judicial knowledge, which is the limited body of information that a judge can be assumed to know. Everything else must be proved.

Background expertise is one of the reasons why arbitration has been popular. Arbitrators are typically chosen by the parties, and one of the criteria is usually the arbitrator's expertise and experience in the subject matter of the dispute.

Court appointed assessors

Recognising this issue, the courts have increasingly welcomed the opportunity to learn about the background, particularly scientific background, to a dispute. The courts have long had the ability to appoint “assessors” who assist with matters of fact. In the Canadian case of Porto Segura Companhia De Seguros v Belcan SA and others (the vessel “Federal Danube”) the court considered the rules around assessors. It said:

“[40] I conclude that the old admiralty rule appointing assessors to assist the judge in making findings of fault to the exclusion of expert evidence should be revised. First, assessors should be permitted to assist judges in understanding technical evidence. Second, assessors may go further and advise the judge on matters of fact in dispute between the parties, but only on condition of disclosure and a right of response sufficient to comply with the requirements of natural justice. In all cases, the parties are entitled to call expert evidence subject to the limits and procedures set out in the Evidence Act and the rules of practice. I state these propositions as general guidelines, aware that it may be necessary or useful for the judge in a particular case, upon consultation with the parties, to vary how assessors are used and what procedures should be followed, depending on the nature of the trial and the issues to be determined. The essential is that the principles of natural justice that protect a fair trial should in all cases be preserved.”

In the UK, in the patent case Kirin-Amgen Inc v Hoechst Marion Rousel Ltd...