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

Pakistan Small Flag Pakistan

Expert evidence is permitted under the Qanoon-e-Shahadat Order, 1984. An expert can be appointed where the court has to form an opinion on some “foreign law”, “science or art” or if there is a need to identify hand-writing or finger impressions. The expert opinion is treated as a relevant fact under Pakistan’s evidence law.

The law does not delineate the nature of duties that are owed by foreign experts.

Malta Small Flag Malta

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.

Singapore Small Flag Singapore

Order 40A of the ROC governs the use of expert evidence called by parties to an action. In particular, such evidence must be given in the form of a written report signed by the expert and exhibited in an affidavit sworn/ affirmed by him, testifying that the report exhibited is his, and that he accepts full responsibility for the report. The expert’s duty is to assist the Court on matters within his expertise, and that such duty overrides any obligation to the person from whom he has received instructions, or by whom he is paid.

With the leave of the Court, a party may put to an expert instructed by another party written questions about his report.

An expert may be called by the parties, or an independent expert may be appointed by the Court (a “Court Expert”). The question(s) to be submitted to a Court Expert and the instructions to be given to him shall, failing agreement between the parties, be settled by the Court. Any party may also apply to the Court for leave to cross-examine the Court Expert on his report.

The remuneration of the Court Expert will be fixed by the Court, and the parties to the action will be made jointly and severally liable to pay such amount fixed.

Russia Small Flag Russia

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.

Spain Small Flag Spain

Expert evidence is permitted can be either appointed by the court or by the parties. Experts must have the relevant knowledge to assess the contested facts or circumstances (ie they must hold an official qualification in the subject or must be well acquainted with the subject concerned), and their opinion must be issued under oath. Expert opinions must be formulated in writing and be accompanied by other materials to sustain said opinions, regardless of the possibility of having those experts appear at the trial or hearing if it is requested by any of the parties.

Expert evidence must generally be submitted when filing the claim or statement of defence. If that is not possible, parties must indicate their intention to use expert evidence when submitting either of those documents.

Indonesia Small Flag Indonesia

Experts’ opinions are recognized as one of evidences accepted in courts. Written affidavits from experts, just like witness’s written statements, are recognized as written documents. Parties can appoint whom they consider as an expert and whose statement will help to support their arguments. However, Article 154 of the HIR also empowers the courts to summon their own experts.

Germany Small Flag Germany

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.

Mexico Small Flag Mexico

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 are 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.

Greece Small Flag Greece

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.

Monaco Small Flag Monaco

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.

Hong Kong Small Flag Hong Kong

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.

Italy Small Flag Italy

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.

Ireland Small Flag Ireland

Independent expert evidence is frequently availed of in commercial proceedings. Under the RSC, parties wishing to rely on independent expert evidence must provide disclose their respective expert reports to each other before trial. The Rules also provide for a procedure known as “hot-tubbing” whereby the court may direct that the respective parties’ experts meet in advance of trial to narrow the issues in dispute.

An expert’s duties are owed to the court and include:

    to provide truthful, independent and impartial expert evidence;
    to state the facts and assumptions upon which his/her evidence is based and to fully inform himself/herself of any fact that could detract from his/her evidence;
    to confine his/her evidence to matters within the scope of his/her expertise; and
    to act with due care, skill and diligence, including a duty to take reasonable care in drafting any written report.

There is no general provision for court-appointed experts in Ireland. However, the High Court has an inherent jurisdiction to appoint such experts if it wishes to do so. This jurisdiction is rarely exercised.

Switzerland Small Flag Switzerland

Upon the request of a party or ex officio, the court can, after first hearing the parties, appoint one or more experts. For the recusal of experts by the parties, the same grounds apply as apply to judges and judicial officers. An expert is instructed by the and submits the expert questions to the expert. The parties have the opportunity to comment the questions to propose modified and additional questions.

Even though the parties may submit expert opinions without any involvement of the court, reports of court-appointed experts generally enjoy a higher credibility, since they have to meet the same formal standards of independence and impartiality as court officials.

Chile Small Flag Chile

Expert evidence is one of the means of evidence allowed in the Chilean legal system.

Expert witness reports can be mandatory or optional in civil proceedings.

Expert’s testimonies are used for fact questions that require special knowledge of an art or science, as well as questions of legal aspects of a foreign law. At a hearing, the court determines the number of experts needed, their qualifications, and the questions on which they will report. The experts are appointed by agreement of the parties and in case there is no agreement, by the court. The parties will have 3 days to oppose to the court’s appointment. The expert owes his/her duties to the court.

Parties can submit their own experts’ reports, but they shall be deemed as documentary evidence and the experts who signed those reports must appear before the court as witnesses.

Sweden Small Flag Sweden

Expert witnesses are permitted. The purpose of an expert witness is to provide the court with observations based on the particular experience that the expert witness possesses. It is only the parties that can invoke expert witnesses in commercial disputes although they are formally appointed by the court, which may also suggest to the parties that an expert witness should be heard. Prior to the main hearing, an expert witness shall file a written statement to the court. An expert witness shall give oral testimony under the same conditions as a witness of fact, if any of the parties request it or if the court deems it necessary.

Portugal Small Flag Portugal

Expert evidence is allowed and can be requested by any of the parties or required by the court.

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.

UAE Small Flag UAE

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.

Saudi Arabia Small Flag Saudi Arabia

Where technical or complex financial issues are raised, it is common for judges to appoint an expert or experts as advisors to the tribunal. It is within the tribunal's discretion whom it appoints as an expert, and to accept or disregard all or part of the expert's findings, but, ordinarily, the determination of technical or complex financial issues falls to the expert. The normal procedure is for the court to ask the parties to each put forward three experts, and if one appears on both parties’ lists, that expert is chosen. If the parties cannot agree on the choice of expert, the court will select the expert from a list of approved experts.

Norway Small Flag Norway

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 present a written report before the main hearing. They also usually give testimony and may be asked questions by both parties’ attorneys and the court. Before giving evidence to the court, the expert witness will be asked to confirm by way of affirmation upon his or her honour and conscience that the expert assignment has been performed and will be performed conscientiously and to the best of his or her convictions.

United States Small Flag United States

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 on the same subject matter 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 them, 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.

Austria Small Flag Austria

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. But the parties have an opportunity to state their views regarding the appointment of an expert. Opinions rendered by court-appointed experts are considered to be a specific kind of evidence under Austrian law. Reports submitted by party-appointed experts are permitted as well, but do not have the same status as opinions rendered by court-appointed experts. According to most recent case law, opinions 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 an opinion 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 opinions, especially in complex litigation.

Japan Small Flag Japan

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.

United Kingdom Small Flag United Kingdom

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 Civil Procedure rules and relevant code of ethics. They have an overriding duty to help the court – a duty which overrides any obligation to the person instructing them 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. Experts typically exchange written reports and then seek to agree a joint statement on points on which they agree and disagree on. They are then cross examined separately at trial or, in a more recent innovation known as “hot tubbing”, the experts will appear simultaneously and answer common questions from both counsel and the judge.

Denmark Small Flag Denmark

Expert evidence (expert appraisal (In Danish: syn og skøn) is widely used, in particular in disputes about construction, real estate, patents or technical issues. The expert is appointed by the court, and has the duty to investigate carefully, a duty owed to the court. The parties may suggest one or more experts but the court is not bound by the suggestions. Expert appraisals involves an expert's inspection and evaluation, and it is possible for the parties to comment on the evaluation. The expert will only investigate the facts and not make any legal evaluation. The expert may however express a view as to what customary practise is or for instance whether the goods are of reasonable quality or similar statements.

Further expert opinions, expert witnesses and appointment of technical judges is a possibility:

  • Expert opinions are written and the court decides the decisive importance.
  • The expert witnesses will comment on the facts of the case.
  • The technical judges will use their own experience when deciding the case together with the legal judges

France Small Flag France

Expert evidence is admissible before French courts. A distinction must, however, be made between private experts and judicial experts.

Parties may unilaterally appoint a private expert to analyse the technical aspects of the dispute. Although private expert evidence is not expressly provided for in the French Code of Civil Procedure, French courts admit it as an element of proof. Private expert reports have, in practice, less weight than reports issued in the context of a Court-ordered expert mission, mostly because private expert missions are not adversarial.

Court-ordered expert missions are governed by the French Code of Civil Procedure. Their main features are the following:

  • the judicial expert is appointed by the court from a list of court-approved experts;
  • the court’s decision must state the reasons why the expert has been appointed and describe the expert’s mission. The court’s decision may be challenged by way of appeal;
  • the experts only deal with technical aspects of the dispute and never express an opinion on a point of law;
  • expert mission is adversarial (i.e. parties are entitled to make observations and requests that the expert must take into consideration);
  • judicial expert’s findings and opinions are recorded in a written report;
  • courts are not bound by that report;
  • expenses related to the expert mission are usually supported by the claimant but, in the end, may be borne by the unsuccessful party.

Beside the Court-appointed experts, French courts may also appoint various technicians pursuant to Articles 232 et seq. of the French Code of Civil Procedure to clarify the technical details of the case.

India Small Flag India

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 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.

Updated: August 30, 2018