ANALYSE CRITIQUE DU PROCEDE D’EXPERTISE DANS L’ATTEINTE D’UNE JUSTICE CIVILE FORMULEE COMME EQUITE*

Abstract

The introduction of the Draft Bill for a new Code of Civil Procedure has revived the movement defending the practice of having expert evidence put forward by the parties to litigation, and provoked resistance to a requirement for expert witnesses testifying under the auspices of the court, whether as members of panels or as single witnesses. Those advocating the control of expert evidence by the parties have not identified insurmountable practical concerns, as it is possible to imagine ways of using experts that are consistent with the adversary system yet support a more co-operative view of the trial. Furthermore, no argument based on a concept of civil justice as fairness can be reasonably advanced against the “single expert” process. On the contrary, civil justice seen as fairness militates in favour of a practice of using experts that meets the standards of competence, impartiality, independence and transparency. For this reason, the real concern of lawyers and litigants should not be to defend the use of partisan experts, but to support changes in the justice system that would respect both the adversarial principle and the concept of civil justice as fairness.