In an influential decision from 1993 known as the Ikarian Reefer, the English Queens Bench held that expert witnesses owe their primary duty to the Court instead of the party who may have retained their services. In the decision, the Court made the following important points:
- Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form and content by the exigencies of litigation;
- An expert witness should provide independent assistance to the Court by way of objective, unbiased opinion in relation to matters within his or her expertise. An expert should never assume the role of an advocate;
- An expert witness should state the facts or assumptions on which the opinion is based, and should not omit to consider facts which may detract from the opinion.
On January 1, 2010, as part of an ambitious attempt to streamline the civil litigation system in Ontario, these obligations will be given effect in the Rules of Civil Procedure. The rules will provide that the duty of an expert witness is to provide fair, objective, non-partisan opinion evidence related only to matters within their area of expertise, and that this duty prevails over any other obligation of the expert witness. A certificate confirming that these duties are understood will have to be signed by the expert witness.
It is to be hoped that these welcome amendments will result in fewer “battles of the experts” to which our litigation system has become accustomed. In cases where such assistance is needed, the Courts rely heavily on expert witnesses to provide opinions on matters outside the expertise of the parties to the dispute. If those opinions are tainted by bias, there can be a failure of justice.