Is expert evidence permitted and how is it dealt with? Is the expert appointed by the court or the parties and what duties do they owe?
Litigation (2nd edition)
Expert evidence plays a crucial role in Austrian litigation. It is for the court to decide whether expert evidence is required and to select and appoint a suited person as expert. However, the parties have an opportunity to state their views regarding the appointment of an expert. Reports rendered by court-appointed experts are considered to be a specific kind of evidence under Austrian law. Nonetheless, reports submitted by party-appointed experts are permitted as well, but do not have the same status as reports rendered by court-appointed experts. This difference can be seen, if the reports differ regarding the outcome, the court can rely without any further assessment on the court-appointed expert report. However, if it is not convinced by the court-appointed expert report, it cannot rely on the party-appointed report. Consequently, it has to appoint another court-appointed expert for a report. It is important to note that according to most recent case law, conclusions by party-appointed experts are insofar relevant as court-appointed experts have to deal with their findings in their own reports
Court-appointed experts function as assistants to the judge. They primarily owe a duty to the court and need to be impartial. Moreover, court-appointed experts can be rejected on the same grounds as judges (e.g. because of a lack of impartiality). The judge poses a set of questions to the appointed expert and instructs him or her with the delivery of a report within a certain time. Usually, experts render their reports in writing and the parties are entitled to question the expert at a hearing. In practice, judges tend to rely (too) heavily on expert reports, especially in complex litigation.
Expert evidence is allowed, and the expert may be appointed either by the court or the parties. The court may appoint an expert witness based on the petition of a party. An expert witness may give its opinion in writing or orally. Expert witnesses appointed by the court are obliged to swear under oath and give expert testimony. The parties themselves may also retain expert witnesses and submit the report of such expert witness as evidence. Expert witnesses retained by the parties are often subject to witness examinations.
Expert evidence is permitted. The Claimant may ask the Court to appoint an expert. They have to sign an oath, undertaking to perform their duties honorably and conscientiously.
However, one party may also appoint an expert to file a report to support its claims. In such case, the only duties of the expert are towards his/her client. Privately obtained experts report may however be more easily challenged by the other party.
Either party to a litigation may apply the court for the permission to invite a person with special expertise to be present in court, giving opinions on a specialized issue. If the court approves such application, the respective expenses shall be borne by the party that files this application.
In addition to that, parties may apply for, and the court can itself initiate an appraisal process on specialized issues of fact finding. When the parties apply for an appraisal in process, the parties of the action shall reach an agreement on the appointment of a qualified appraiser. If such agreement cannot be reached, it is the court to decide the appraiser’s appointment.
The appraiser’s report can be challenged by litigants of the case. Where a party disagrees with the appraisal report or the court deemed it to be necessary for the appraiser to be present in court, the appraiser shall testify in court. Upon notification by the court, where the appraiser refuses to testify in court, the appraisal report shall not be used as the basis for ascertainment of the respective facts.
Final decisions can be appealed by way of extraordinary appeal mechanism such as the appeal for annulment of the decision, within 15 days after the receipt of the final decision, no more than a year after the decision became final. Another extraordinary way of appeal is the revision of the decision, when the party must submit it within one month, up to 6 months after the receipt of the final decision.
The court that has rendered the final decision usually has jurisdiction over the extraordinary appeals.
All interim orders, except those rendered by a court of appeal, are always appealable. Interim orders rendered by a court of appeal may be object of an appeal for review (recourse). The appeal or appeal for review shall be judged on an expedited basis and with notice.
Expert evidence is permitted. As a rule, each party appoints its own expert witness(es) but the parties may agree to jointly appoint a single expert. The court has the power to summon an expert witness on its own motion. However, this power is rarely exercised. Expert witnesses have a duty to provide objective and impartial evidence on matters that fall within their area of expertise enabling the court to judge the accuracy of their conclusions and to formulate an independent view on their application to the facts. Expert evidence must be provided with clarity and detail, in an understandable language and without complicated professional technical terms as well as with care and skill and in compliance with the Civil Procedure Rules and the code of ethics. Expert witnesses’ reports are usually provided to the other party prior trial and the witnesses are subsequently offered for cross examination.
In civil proceedings, a party may request the court to commission an expert report (in Danish: syn og skøn). The party requesting expert evidence will have to pay the costs of the expert until the court renders its judgment. The expert cannot make any legal assessments. The appointed expert will perform an inspection, assessment and answer the questions from the parties.
Additionally, expert opinions from the parties can generally be submitted if they have been obtained before the commencement of the legal proceedings, but not if they have been prepared after the legal proceedings have started, unless both parties agree.
Expert evidence is permitted, though it is non-binding to the court. While Egyptian law stipulates that parties may appoint the expert, it is rare that parties appoint the expert as the expert is usually court appointed. The expert is expected to draft a report including all of his findings and his expert opinion, supported by all the evidence. The court experts are usually quantum or technical experts and do not make decisions on the law.
Expert opinion is a commonly used type of evidence in Russian proceedings. Often parties provide expert reports to support their positions. While such reports may be accepted by the court, they do not formally qualify as an expert opinion, because under the Commercial Procedural Code an expert should be appointed by the court. Each party may provide candidates to be nominated as an expert, but the final decision is taken by the judge, who can appoint an expert even disregarding the parties’ nominations. In most cases, the courts appoint professional experts employed by experts' organisations, both state and private.
An independent expert opinion must be provided to the court in a written form. After that, an expert may be called to a court hearing to clarify his/her opinion and answer questions of the judge and the parties. By law, an expert evidence is of equal weight with other types of evidence that must be examined by the court as a whole. However, in practice the courts rely heavily on expert opinions.
Expert evidence is permitted in commercial litigation. The role of experts is to deliver expert opinions providing specialized knowledge that pertains to a particular subject matter necessary to deliver judgment.
The party offering this type of evidence must indicate the subject matter, issues to be determined and the expert appointed. The opposing party will be given the opportunity to deliver comments on the subject matter, indicate additional issues to be determined, and select an expert of its own. The experts have to deliver their testimony in writing, and if they are substantially contradictory, the Court will appoint an expert in the same subject matter to deliver its expert opinion.
Party-appointed expert’s fees are paid by each party. The fees of the Court-appointed expert, are shared equally among the parties.
German procedural law allows for expert evidence. Especially in corporate and commercial cases, courts and parties often rely on experts to establish their case, e.g. with respect to the calculation of damages.
Experts are appointed by the court in consultation with the parties, sec. 404 (2) ZPO. Thus, the court-appointed expert serves as a prolonged arm of the judge. As a result, the expert must be impartial and independent of the parties and act diligently and apply the required duty of care. In case of a culpable breach of said duties, the expert may be liable (sec. 839a BGB). Court-appointed experts can also act as a party witness if they indeed witnessed facts that need to be proved by that party.
Expert reports are subject to the same evidentiary rules as other means of evidence, i.e. the principle of free assessment of evidence at the court’s discretion and conviction (freie Beweiswürdigung) also applies to expert evidence. However, the courts usually rely entirely on the expert report and oral testimony, especially where the issues in dispute are highly technical or require a specific knowledge that only the expert has.
In complex or important litigation cases, parties often engage their own private expert so as to support their written submissions with an expert report. In many cases, such expert reports serve the purpose of assisting the court-appointed expert in examining the relevant issues properly and comprehensively. Sometimes, they are also submitted in order to challenge an already existing report authored by the court-appointed expert. The court is bound to take such submissions and report into account when assessing the content and evidentiary value of the report of the court-appointed expert. Reports by party-appointed experts are characterised as “substantiated” party submissions, i.e. they are subject to the same procedural rules as any other submission or pleading by the parties.
Expert evidence is permitted. Such evidence takes the form of a written report prepared prior to trial for cases involving technically complex issues or matters of foreign law and, at trial, experts may give evidence orally and be subject to cross-examination. Where a party calls as a witness an expert whose report has been disclosed in the proceedings, the report may be put in evidence at the commencement of the examination in chief of that expert or at such other time as the court may direct.
A party would typically appoint its own experts, subject to leave of the court. A single joint expert may be appointed by agreement between the parties, or by the court.
Experts owe an overriding duty of independence and impartiality to the court. They do not owe a duty to the party paying them or by whom they are instructed.
Expert evidence is permitted only with the permission of the court and the expert will normally be appointed by the parties but will have an overriding duty to the court. Expert evidence is normally prepared in the form of written reports either by a single or joint expert. Experts can then be cross examined on their reports at trial. There is also scope for the joint appointment of a single expert.
The rules dealing with evidence in the Guernsey courts are covered in the Evidence in Civil Proceedings (Guernsey and Alderney) Rules 2011.
Under Indian law, expert evidence is permitted under Sections 45 and 45A of the Evidence Act. Expert evidence is called for when the court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, or any information transmitted or stored in any computer resource or any other electronic or digital form.
Section 45 defines an expert as a person who is especially skilled in a given field. Expert opinion is not binding on the Court and is of an advisory nature. The expert is required to place before the Court all the materials, together with reasons underlying his conclusions, so that the Court, although not an expert, may form its own judgment on the basis of those materials.
In the case of arbitration proceedings, Section 26 of the Arbitration Act specifically provides for the appointment of an expert by the arbitral tribunal, unless it is agreed otherwise agreed by the parties. The arbitral tribunal may also require a party to give the expert any relevant information, or to produce, or to provide access to any relevant documents, goods or other property for his inspection. Further, the arbitral tribunal may also require the expert to participate in an oral hearing.
The credibility of an expert can be challenged by cross-examination, or by contrary evidence of another expert or by showing that he had expressed a different opinion on the same question previously or under Section 155 of the Evidence Act, which generally deals with impeaching the credit of a witness. The experts may be appointed by the parties and the court also has the power to suo moto appoint an expert for opinion.
Isle of Man
Expert evidence is permitted in certain cases but where it is permitted it is restricted to that which is reasonably necessary to resolve the proceedings. A party would normally apply to adduce expert evidence where necessary and there would then, if the application was successful, be an order appointing the expert. Under the common law (see for example Hawthorne v Jones 2007 MLR 199 applying the Ikarian Reefer  2 Lloyd’s Rep 68) and rule 8.53 experts have a duty to help the court on matters within their expertise. An expert must assist the court by providing objective, unbiased opinion on matters within his expertise and must not assume the role of an advocate. The expert must consider all material facts, including those which might detract from his opinion and he must make it clear (i) when a question or issue falls outside his expertise; and (ii) when he is not able to reach a definite opinion (for example because he has insufficient information). If, after producing a report, an expert changes his view on any material matter, he must communicate such change of view to all the parties without delay, and when appropriate to the court. The duty of an expert to the court overrides any obligation to the person from whom he has received instructions or by whom he is paid.
The expert evidence would usually be in the form of a written report but an expert may have to attend for cross examination.
The court has power to direct that evidence on a certain issue be provided by a single joint expert instructed by the parties and the court may, at any stage, direct a discussion between experts to try and reach an agreed opinion on certain issues.
Expert evidence is provided by Articles 191 et seq. of the Code of Civil Procedure. The expert is chosen and appointed by the court, which also formulates the questions to be submitted to the expert at the hearing fixed for his or her appearance and oath. If strictly necessary, two or more experts can be appointed.
According to Article 194 of the Code, the expert attends the hearings to which he or she is invited by the judge, he or she performs the requested technical inquiries and he or she may be authorized to request clarification to the parties, to take information from third parties and to make layouts, moulds and surveys.
In any case, the parties can always intervene in the expert operations personally or through their own technical consultants and/or lawyers and can submit observations and requests to the expert. The expert must provide a report to the Judge containing his or her answers.
As set forth at Article 195 of the Code, the draft of the report must be sent by the expert to the parties within the deadline established by the judge, who also establishes the deadline by which the parties must send to the expert their final observations on the report and the deadline by which the expert must file the final report.
Expert opinion is permitted on a matter requiring special knowledge, skill, experience or training, which the expert is shown to possess. Experts may be appointed either by the court or by a party. Experts have the same rights and obligations as ordinary witnesses.
Expert evidence is allowed and can be requested by any of the parties or required by the court.
Usually, the expert is appointed by the court, and must perform his/her functions with diligence and impartiality.
However, if both parties agree to a certain expert, the court should appoint this specific expert unless there are reasonable grounds to believe that the expert in question is not capable.
Expert evidence may be carried out by one single expert or - by request of the parties or when the court reaches the decision that expert evidence is required due to the complexity of the matter - by a team of up to three experts. In this situation each party appoints one expert and the court appoints the third.
Expert evidence may be taken in two ways - by a professional statement or expert report.
Expert evidence taking by a professional statement is preferred where it is necessary to ascertain facts for which professional knowledge is needed. If it is so, the court orders a professional statement of a qualified person on application of a party to the proceeding. The court assesses the qualification of such a person.
The state bears the cost of a professional statement; however, the court may order the party that filed the application for a professional statement to pay an upfront fee corresponding with the estimated cost of the professional statement.
The court may appoint an expert witness on application of a party to the proceeding if the decision-making depends on the assessment of facts for which scientific knowledge is needed and due to the complexity of the matter, a professional opinion is not enough. The expert witness then prepares an expert report that answers the questions posed by the court.
If the court appoints an expert witness, the state bears the cost, however, the party that filed the application for an expert report should pay an upfront fee corresponding with the estimated cost of the expert report.
Parties to the proceeding may also order their own expert report and pose the expert their own questions to be answered in the expert report. If the court decides that such a private expert report is admissible as evidence, it is regarded as an expert report prepared by an expert witness appointed by the court.
The party that ordered a private expert report should bear the cost of the expert report.
The winning party is awarded the costs of proceedings - including the cost of expert reports and professional statements.
An expert and/or expert witness shall be objective, independent and unbiased when answering the questions disregard of whether the expert and/or expert witness is appointed by the court or prepares an expert report ordered privately by a party to the proceeding.
An expert witness is normally appointed by one of the parties. Although the court also has powers to appoint experts, this rarely happens in a civil case. The main difference between a witness of fact and an expert witness is that prior to the main hearing, an expert witness shall produce a written expert opinion regarding the matters of which he or she is to give testimony. When the expert witness is appointed by one of the parties, essentially the same rules apply as regards a witness of fact. Following the direct hearing, the expert is subject to cross examination by the opponent side.
Swedish procedural law does not allow a witness to attend the hearing prior to giving testimony, which means that as a general rule experts are not heard at a witness conference. However, if the parties are in agreement with respect to how the experts shall be heard, this is usually accepted by the court.
Expert evidence is permitted at the court’s discretion as their primary role is to assist the court on technical matters. Experts owe a duty to those instructing them to exercise skill and care and to comply with the CPRs and relevant codes of ethics. However, their primary duty is to help the court – that duty overrides any obligation to the person instructing or paying them. In complex cases it is not unusual for each side to instruct their own expert on one or more issues, although the court has the power to order a single expert to be instructed jointly. Where each side has its own expert(s), the experts typically exchange written reports and then seek to agree a joint statement on points on which they agree and disagree. They are then cross examined separately at trial or, as part of a process known as “hot tubbing”, the experts appear simultaneously and answer common questions from both sides and the judge.
According to Articles 132-158 of the Law of Evidence, expert evidence is permitted and regulated in Bahrain. Experts are appointed by the court and their mandate is described in the decision of their appointment issued by the court. The appointment of an expert by the court is done from the roaster of experts in the field available at the court. Such appointment may be at the request of a party to the case, or by the court at its own discretion. In some instances, the parties may both agree on an expert.
The Ministry of Justice sets the criteria required for experts in each field. The experts are bound by the mandate for which they are appointed and they shall be subject to the general requirements of impartiality and other required qualities for such an appointment.
Expert evidence is permitted. The expert must be appointed by the court, but the parties are allowed to provide suggestions. Expert evidence can manage to slow proceedings given its formality, as
- experts can be recused by the parties,
- courts must sworn them in, and
- experts are free to negotiate their professional fees, so if the expert recuses himself or the interested party can’t agree with a reasonable fee, the court then shall appoint another expert, which leads to prolong cases over time.
In sum, expert evidence can be vulnerable and must be used when strictly needed.
Expert’s opinion is recognized by the court as an acceptable evidence. A written affidavit from an expert, just like a witness’s written statement, is recognized as a written document. The disputing parties can appoint anyone who they consider as an expert and whose statement will help to support their argument. However, Article 154 of the HIR also empowers the court to summon their own expert.
Expert evidence is permitted when the court is required to form an opinion upon a point of foreign law, existence of any general custom or rights or of science or art, or as to identity or genuineness of handwriting or finger impressions. [Section 45 of the EA]
The experts will be giving evidence in written reports. The written reports shall be signed by the expert and exhibited in an affidavit sworn or affirmed by him.
The experts, as the case may be, may be appointed by the court or by the parties [See Orders 40 and 40A of the ROC]. In either instances, the duty of an expert is to assist the court on the matters within his expertise.
The so-called "expert witness report" is very common in Chilean civil and commercial procedures. In fact, the CHCPC regulates this report which consists of the opinion made by a third-party expert on a subject requiring special knowledge of a science or art.
The parties can agree on the person or institution that will be in charge of the elaboration of the report. If there is no agreement, it is the court who must appoint the expert. The expert must swear to perform the order faithfully, and must be an impartial person, being able to be disabled in case of verifying a circumstance that affects his impartiality.
In certain types of procedures the expert evidence is highly relevant, and in many cases it is the determining factor for the decision, although obviously it is not legally binding for the judge.
Yes, where a person is called as a witness, that person’s opinion on any relevant matter on which s/he is qualified to give expert evidence shall be admissible in evidence only if, in the opinion of the court, s/he is suitably qualified in the relevant matter. A person who is suitably qualified on account of his knowledge or experience, is competent to give expert evidence as to the law of any other foreign state, irrespective of whether he has acted or is entitled to act as an advocate, or in any judicial or legal capacity in that state.
An ex parte witness is normally appointed by a party before the proceedings and included in that party's declared list of witnesses. Where a witness is appointed by a party there is no particular procedure that must be followed. Such a witness need not necessarily be impartial although he must deliver testimony honestly, objectively and to the best of his ability.
Maltese courts are never bound by the opinion of the experts. However, a Maltese court does not usually disregard the opinion of a duly appointed judicial expert without good reason, especially when the expertise refers solely to technical issues.
The testimony of an ex parte expert witness is without prejudice to the court’s power to appoint a referee for the purpose of examining witnesses on oath, taking down their depositions in writing and establishing the relevant facts.
No expert on Maltese law is admissible although this principle has unfortunately been somewhat revisited by erratic jurisprudence over the past years.
Expert opinions are usually required if the matter raises complex questions of fact in specific fields such as technology and science. Thus, the expert will typically be asked to refrain from commenting on questions of a legal nature (which are for the court to decide) and to render its opinion on the disputed facts only (an exception may apply, where the content of foreign law needs to be established).
The expert will usually be appointed by the court upon request of a party that intends to prove the adequacy of an alleged fact. Alternatively, an expert may also be appointed ex officio by the court. The expert is chosen and instructed by the court, but the parties have the right to comment in advance on the person that shall be appointed as expert and on the questions that shall be submitted to such expert. The same grounds for recusal that apply to judges and judicial officers also apply to court-appointed experts. The court will advise the expert that the submission of a false opinion and the violation of official secrecy by the expert are punishable criminal offenses.
Once the expert opinion is submitted by the expert (such expert opinion may, as per order of the court, either be presented orally at a hearing or in the form of a written expert opinion), the court shall give the parties the opportunity to ask for explanations or to submit additional questions. Even though they are not legally binding for the court, the courts tend to attribute a high probative value to court-ordered expert opinions.
Especially in proceedings before specialised courts (such as the commercial courts, see questions 1 and 3), the panel of judges will be composed of judges with a legal background on the one hand and with industry experts on the other hand. The court (or at least one of the judges deciding the case) thus may deem that it has sufficient own expertise to assess the adequacy of a fact of technical or scientific nature and that the appointment of an additional expert is there-fore unnecessary. If the court relies on the special expertise of one of its members, it must in-form the parties accordingly, so that they may comment on such course of action.
Court-ordered expert opinions in the described sense are the only expert opinions recognized by the CPP as a true means of evidence. Apart from that, the parties are of course at liberty to mandate (additional) experts on a private basis outside the court proceedings (party-obtained expert opinion). The parties may then attach and refer to such party-obtained expert opinions in their briefs filed with the court. However, as already mentioned in question 13, such expert opinions obtained by the parties themselves are not considered to have actual probative value but will usually be regarded as mere (albeit somewhat enhanced) party allegations by the court. This has been criticised by practitioners and legal scholars who argue that it is not necessary to exclude party obtained expert opinions from the accepted means of evidence since the court must assess the evidence freely and may – while doing so – take into consideration the fact that the expert was mandated and paid by the submitting party. In a pre-draft regarding the revision of the CCP, the Swiss government now proposes to amend the CCP as to explicitly recognize privately obtained expert opinions as a form of documentary evidence. This revision process is still ongoing, and we cannot predict whether such changes will come into effect.
According to article 368 GCCP et seqq. the court may appoint, either on its own initiative or following a request of the litigant parties, one or more experts in case it considers that there are issues of science or craftsmanship to be determined. In case of an appointment of an expert by the court, each litigant party can also appoint a technical consultant. The experts are conducting a report but they can also be ordered to appear before the court. The courts proceeds to the appointment of the experts from the lists kept at its seat. If no list of the expertise required is kept at the court’s seat, the court may appoint any person that is considered appropriate. Before the execution of their duties, the experts give an oath of diligent/conscientious implementation of their tasks. The timeline and the guidelines of their appointment are set by the court.
The evidence provided by the expert’s report is freely evaluated by the court.
Expert witnesses are permitted. They can either be appointed by the court or relied on as an expert witness by a party. Expert witnesses usually prepare and enclose a written report before the main hearing, and must give an oral testimony.
Expert evidence is permitted under Luxembourg law. It can take different forms and can be either ordered by the judge itself or submitted by the parties at their own initiative, jointly or not.
The NCPC distinguishes three different forms of expert evidence, to be ordered by the judge: the verification of facts (‘constatation’), the opinion (‘consultation’), and the expertise (‘expertise’).
Regarding the verification of facts, the mission of the third party designated by the judge limits himself to a strict statement of facts. He must refrain from expressing any opinion on the factual or legal consequences that may derive from the material findings he has made. As a result, this mission does not necessarily have to be entrusted to a specialist or a technician. Article 13, paragraph 4 of the law of 4 December 1990 on the organization of the service of judicial officers even expressly provides for that it can be entrusted to a bailiff.
Entrusted with an opinion measure, the mission of the third person appointed by the judge goes beyond that of a simple observation, to extend into the technical field underlying the dispute. The opinion specifically aims to provide an insight into a technical issue, provided that it is purely technical and that it does not require complex investigations.
The NCPC does not provide for positive criteria delimiting the scope of an expertise. It limits itself to defining it in a negative way by providing that the use of expertise is only available if the verification of facts or the opinion are not of such a nature as to provide the necessary elements of assessment to resolve the dispute. On this basis, it can be considered that the expertise involves a mission requiring complex investigations. It can therefore only be entrusted to a person with knowledge and proven technical skills.
Besides these three measures, the parties sometimes take the lead in the process and carry out measures similar to those of the verification of facts, opinions and expert witnesses statements, without being ordered by the judge. They can do so either unilaterally or jointly. The judge can take that kind of unilaterally submitted expert evidence into account when issuing its decision, providing that it has been regularly communicated to the other party and has been discusses by both parties during the proceedings.
Expert evidence is permitted in both federal and state jurisdictions.
In federal jurisdictions, expert witnesses can be hired by parties or appointed by the court. Court-appointed experts must advise the parties of any findings that the expert makes, may be deposed by any party, may be called to testify by the court or any party and may be cross-examined by any party. If a party hires an expert witness, that party must disclose the expert’s identity to the other parties at least 90 days before trial or, if the evidence is intended solely to contradict evidence identified by another party, within 30 days after the other party’s disclosure. The party must also accompany its disclosure with a written report signed and prepared by the expert, unless otherwise ordered by the court. The report must include a complete statement of all opinions the expert will express and the basis for them, the facts or data considered by the expert in forming them, any exhibits that will be used to summarize or support the expert’s opinions, the expert’s qualifications, a list of other cases in which the expert testified as an expert and a statement of the compensation the expert will be paid for the study and testimony. The trial court is then charged with determining whether an expert’s testimony is admissible, which requires an assessment of the scientific validity of the expert’s work.
Expert witnesses are handled similarly in state courts, but the rules governing disclosures and admissibility may differ by jurisdiction. For example, in New York, parties must make expert disclosures, but they are not subject to the same stringent disclosure deadlines as in federal jurisdictions.
Expert opinions are permitted but such evidence, along with field investigation or Judge’s knowledge, are categorised as “presumptive” evidence—in contrast to documentary evidence, witness testimonies, statements under the oath or confession, which are “persuasive” evidence.
In disputes with technical issues where the court requires expert opinion, or where an expert opinion is requested by one of the parties, the judge may refer the questions to an odd number of qualified judicial expert(s). The judge would appoint the expert(s) and communicate the mandate and the scope of investigations to them. The judge would also set the timeline within which the expert(s) must render the requested opinion. The timeline may be extended by the judge if requested by the expert(s). Experts owe their duties to the court, must follow the judge’s instructions and meet the timeline imposed by the court, and must follow statuary rules of professionalism (such as those incorporated in Article 262 of CCP and Article 19 of the Law on Official Judicial Experts Association).
The judge would also fix the expert(s) fee based on applicable fee regulations and depending on the complexity of the matter(s). The fee for the first opinion must be paid by the plaintiff and any fee for additional opinions must be paid by the party who has requested such additional opinion. If the judge requests for an expert opinion, the plaintiff pays the expert(s) fees.
If a party has an objection to an expert(s) opinion, the party must submit its objection within seven days of the official service of the opinion. If the court accepts the objection, the matter will be referred to a panel where additional experts will be engaged. For instance, if objection to an opinion rendered by one expert is accepted, the court will refer the matter to a panel of three experts, and if the opinion by such panel is rejected too, the court will mandate a panel of five experts and then panels with higher number of experts. There is no cap under the law with respect to the maximum number of experts but a panel of more than seven experts is extremely rare.
Once an expert opinion is ready, the court usually schedules a hearing session to receive the opinion and arrange for officially serving the opinion on the parties.
Prior to commencement of the proceedings, a party considering a lawsuit may request DSCs to engage a judicial expert to opine on the need for, and the scope of, such party’s application for preservation order.
In the Dutch jurisdiction expert evidence is permitted and widely used. For example, parties often engage experts to calculate damages. Expert evidence may be furnished by submitting written expert evidence by one of the litigants or by having an expert examined as a witness. There are no specific rules regarding concurrent expert evidence. Parties are free to instruct their own party-appointed expert and they usually affect the expert’s report. The opposing party may produce their own party-appointed expert report to contest the findings of the other expert.
The court may, at the request of the parties or ex officio, order an (independent) expert to provide an expert report or to be heard. A court appointed expert has the duty to fulfil his appointment impartially and to the best of his abilities. He must allow parties to comment on the draft report and to make requests. The comments and requests have to be included in the report. The report needs to be reasoned. Parties have the duty to cooperate with the investigation of the expert.
The court is free to weigh the expert report(s). It is our experience that Dutch courts rely heavily on expert reports (also partisan expert reports), especially when they concern issues that require specific knowledge which a court lacks (e.g. technical features of certain products, complex financial products or business practices in certain industries).
Expert evidence is allowed; it is regulated by Ecuadorian procedural law. Experts are physical or legal persons and must be accredited by the Council of the Judicature, which is the judiciary’s administrative body. Expert fees are paid by the party that requested the expert testimony.
Expert reports are filed together with the complaint, the answer, the counterclaim, and its answer. They must be supported by the expert at trial so that each party may examine and cross-examine the expert, who must answer under oath questions about his suitability, impartiality, and the contents of his report.
If, in the judge’s opinion, the expert report is incomplete or insufficient, he may designate a new expert.
Expert evidence is permitted and it is even very common for a court to refer the matter to an expert to examine and submit his findings on.
Experts can be appointed by the court pursuant to a preliminary judgment where the court refers the matter to an expert from the list of its registered expert. The court highlights the tasks/mission of the expert, his fees and the party bearing the same in the preliminary judgment. The parties can also agree on a certain expert to be appointed.
When the court decides to refer a matter to an expert and he is duly appointed, he then schedules the first meeting with the parties for them to submit their documents and memos. The expert can schedule several meetings with the parties and may request to visit their offices and examine their records. Each meeting is recorded and the parties sign the minutes of the meeting.
Once the expert concludes his mission, he submits his report with his final findings to the court along with all documents and minutes of meetings. Thereafter, the parties comment on the report.
The court may then call in the expert for clarifying certain matters, or order the expert to further examine the parties’ comments and submit a final report. The court may also refer the matter to a different expert/s.
The Court is not bound by the expert’s opinion, and if it issues a judgment contrary to the expert’s opinion, it shall state the reasons for doing so in the judgment.
The parties may also submit independent expert reports as evidence to support their claims.
The court may appoint an expert upon the motion of the party, and, if prescribed by law, at his initiative. When submitting a motion for appointment of a forensic examination, the party is obliged to indicate the fact that has to be proved by the expert's opinion and to propose issues to be clarified during the examination. Parties to the lawsuit have the right to indicate the specialised expert institution or expert that the court may instruct the examination. If a license or qualification is required to conduct an appropriate examination, the person participating in the case submits to the motion a proof of his / her competence of such expertise by a specialised expert institution or expert. In the cases envisaged by the law, when appointing an expert at his initiative, the court has the right to nominate questions to the expert at his / her initiative.
Parties have the right to attend the expert examination, except where his presence may hinder the normal work of the expert or violate the rights of others. The court shall decide based on an expert's request to prohibit parties to attend the examination. The court may decide on acquiring samples of human, material or other substances if the examination of those is important to the execution of the expertise. The samples must be taken in respect of requirements of the law, avoiding any means causing mental and physical suffering or threatening to health or body integrity of the person.
The expert shall carry out the assigned expertise personally. The court may appoint more than one expert of the same or different professions. Experts have the right to consult with each other and in give a single opinion — experts who disagree with the unanimous conclusion present separate opinions. The assigned expert must immediately inform the court about his incompetence to give an expert opinion or about the necessity to engage additional experts, if so, and about hindering circumstances or inability from ensuring the normal course of expertise. In that case, the court without convening a hearing decides on taking measures to ensure the normal course of expertise.
Parties can make written objections to the expert opinion before the end of the preliminary hearings, except when the grounds for objection have been revealed during the trial, or the party proves that the objection was not filed within the prescribed time limit for reasons beyond its control.
If the expert opinion is not clear or complete, the court may, upon the motion of the party or at his initiative, decide additional expertise by assigning the execution to the same or another expert. If the court or the party has doubts about the validity of the expert opinion or there are contradictions between the opinions of the several experts or the expert's opinion and the explanation of the specialist, or in case procedural rules for the expertise are violated, the court at his initiative or upon the motion of the party, the same issues may be referred to a repeated examination, the execution of which is assigned to another expert specialist.
The opinion of the expert chosen by the person participating in the proceedings shall be equivalent to the opinion of the expert appointed by the decision of the first instance court, if the expert chosen by the party before the end of the preliminary hearing makes a written statement about being aware of the criminal liability for giving an obviously false opinion.