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 [2005] RPC 169, the House of Lords took what was then the innovative approach of seeking to understand the science of recombinant DNA. Lord Hope said:
"Before leaving the case, however, I would like to pay a particularly warm tribute to the valuable assistance which, with the agreement of the parties and in common with others of your Lordships, I received from Professor Michael D. Yudkin, Professor of Biochemistry at Oxford University, in a series of seminars which he gave in camera before the appeal was heard to introduce us to the relevant aspects of the recombinant DNA technology. The work which Professor Yudkin did by means of these carefully prepared seminars enabled all those involved to concentrate on the issues of law in the appeal without having to spend a good deal of extra time in the course of the hearing on learning about the technology. This had the effect of shortening the length of time that it was necessary to devote to the hearing by several days. It was at Lord Hoffmann's suggestion in the course of a preliminary hearing that this was done, as there was no dispute about the technology. I suggest that it is a course which might usefully be adopted in the future in cases of this kind, where the technology is complex and undisputed and the parties are willing to consent to it."
Neutral scientific adviser
More recently, also in a patent case, Electromagnetic Geoservices ASA v Petroleum Geo-Services & Ors [2016] EWHC 881 Mr Justice Birss said:
"Before the trial I had the benefit of a teach-in from a neutral scientific adviser, Dr Karen Weitemeyer. Directions for this were addressed in an interim judgment EMGS v PGS [2016] EWHC 27 (Pat), see in particular paragraphs 27-36. Dr Weitemeyer was provided with a set of brief instructions which were settled by the court. They consisted essentially of the two primers (on geology and CSEM) as well as short extracts from the expert's reports which dealt with matters of background. She was not told about the issues. Dr Weitemeyer was asked to prepare materials, effectively Powerpoint slides, to educate the court on five topics. The teach-in took place over the course of a single day as a meeting between myself and the Doctor. The parties were not present and I was able to ask candid questions and learn. I learned a lot. Afterwards the paper materials were provided to the parties so that they could see what had happened."
He went on to say:
"Although the teach-in took place in private, that was helpful in facilitating a candid discussion. After the teach-in the scientific adviser did not participate in any way. Having the scientific adviser's instructions settled by the court in advance and then making the written materials available to the parties afterwards ensured an appropriate degree of transparency. Overall, seen from the point of view of a reasonable fair minded observer, the interests of justice were served."
Educating the judiciary
This approach to educating the judiciary in individual cases has the potential to save significant amounts of time and expense. It does leave the parties and lawyers slightly uncertain as to what exactly has been discussed between the court and the expert, but that can be clarified if it is important. Others may prefer the "hot tubbing" as a way of educating the judge. However this is in fact just a process to try and accelerate the resolution of issues. If the judge does not know where to start, then hot tubbing is likely to be a lengthy process.
We have been involved in many cases that involve complex scientific or technical evidence. If you would like to have a discussion about how best to inform your decision maker, please get in touch.