Guidelines for Assessors

[2005] EWHC 380 (Admlty), [2005] 1 Lloyd’s Rep 699 TEDR Volume 11 Issue 1

The Facts

This was a case arising out of a collision between two vessels on the Orinoco River in Venezuela. The dispute was about fault for the collision, and an expert assessor had been appointed by the Court, under CPR r.35.15, to assist.

The Issues

The issue between the parties was fault; but the Court also set out guidelines for the proper approach to collision cases where there is an expert assessor appointed.

The Decision

On the substantive issue the Court found for the Defendant, and that the Atlantic Crusader was not responsible. In short, although the Atlantic Crusader had failed to control her yaw whilst at anchor, that was not causative of the collision, which could have been avoided in any event had the Global Mariner not been negligently handled.

The guidelines set out by Gross J for the future conduct of collision cases are as follows (at 14):

“(i) The range of topics on which advice might be sought from the Assessors should be canvassed with counsel by, at latest, the stage of final submissions;

(ii) Ordinarily, the questions asked of the Assessors by the Judge should not stray outside the range previously discussed with counsel; should they do so, however, there are safeguards contained in iii) and iv) below;

(iii) The questions ultimately put by the Judge, together with the answers given by the assessors, should be disclosed to counsel before any draft judgement is handed down;

(iv) Counsel should thereafter be given the opportunity to make submissions to the Judge, as to whether the advice given by the Assessors should be followed. Ordinarily, any such submissions should be in writing; but if there is good reason for doing so, an application could be made for an oral hearing. The Judge will consider any such submissions before finalising his judgement.

(v) Generally speaking, the interests of proportionality and finality will make it unnecessary to repeat the procedure after the Judge and Assessors have had the opportunity of considering the parties’ submissions and any suggested or further revised questions”

The approach recognises that failure to provide counsel with an opportunity to respond to Assessors’ answers is incompatible with Article 6 of the ECHR (see Owners of the “Bow Spring” v Owners of the “Manzanillo II [2004] EWCA Civ 1007).

The Judge explained that the guidelines aimed to strike the correct balance between transparency on one hand, and the need to curb the cost and delay inherent in post-hearing exchanges on the other.

Comment

An excellent set of guidelines – which interestingly restrain the potential temptation for judges to ask any questions privately of an assessor that happen to occur to them at the time – and instead for inquiries by the judge to be pre-planned with the parties (usually with their respective counsel) and for the ultimate questions and answers to be set out in writing prior to judgement being finalised and with parties having the opportunity to make submissions by their counsel, pre-judgement.