Civil legal expert examination in Malta: Situation
Extract from the final Eurexpertise report
All rights reserved EEEI © 2012
- Gilbert MOUTHON, Expert
Other administrative order
I. Procedural rules in calling for an expert examination
I. 1) On the initiative of
In civil matters: at the request of the parties or of the Court (Article 543 – Code of Organization and Civil Procedure)
I.2) Mandatory expert examinations
I. 3) Decision-maker
The judge or the arbitrator
I.4) Is a pre-trial expert examination possible?
II. CHOICE AND APPOINTMENT OF THE EXPERT(S)
II. 1) Register
Register: Article 89 of the Code of Organization and Civil Procedure: the Minister of Justice appoints the expert groups of the Courts of Malta and Gozo.
The Court can appoint “arbitrators” at the request of one of the parties or of its own motion. The Minister of Justice appoints experts groups within the Courts of Malta and Gozo (the list is published in the Government Gazette – these experts perform their duties following an alphabetical listing of their names and on rotation in the Court to which they are attached).
II. 2) Oath
II. 3) Choice of the Expert
II. 4) Participation by the parties in the appointment process
If the parties agree, it is the “arbitrator” they have selected that is appointed.
Otherwise the Court appoints an expert of its own choice.
II. 5) Nationality
II. 6) Recusal by the litigant parties
An “arbitrator” cannot be challenged by either of the parties until he has submitted his report.
Challenges must be made substantively during the hearing or by motion. (Recusal seems possible but the document in support of this mentions only the motives for a Judge’s recusal, and not that of an expert or an “arbitrator”).
II. 7) Expert’s withdrawal (refusal of a mission)
A withdrawal or a recusal seems possible in the event of a family tie, subordination, or involvement in another case.
Challenges must be made during the hearing or by motion.
II. 8) Possibility of adding another expert
Expert groups are allowed to give temporary assistance to chosen experts.
II. 9) Possibility of being assisted by a colleague
With the Court’s approval, experts can be assisted by other persons.
III. DEFINITION OF THE EXPERT’S MISSION
III. 1) Who determines the mission?
III. 2) Type of mission
IV. PROGRESS OF THE EXPERT’S MISSION
IV. 1) Judge supervision
He must not get involved in the preparation of the expert’s report.
IV. 2) Form of contradictory procedure
Immediate and permanent
IV. 3) Participation in the hearing
The Judge may request the appointment of another “arbitrator” (Article 654). In such a case, the Court makes an order to stay proceedings.
V. Close of the expert examination
V. 1) Does conciliation put an end to the expert’s mission?
V. 2) Form imposed on the report
V. 3) Does the report put an end to the expert’s mission?
The proceedings are concluded by a written report. All the documents produced must be annexed to the report signed by the expert or the “arbitrator”.
V. 4) Is there an imposed structure for the report?
V. 5) Is a preliminary report mandatory?
V. 6) Is the judge bound by the expert’s conclusions?
Articles 681 of the COCP.
The Court is not bound by the “arbitrator’s” conclusions against its own conviction.
Courts are free to decide whether or not to adopt the expert’s findings.
V. 7) Possibility of a second opinion
VI. Funding for the expert examination
VI. 1) Security-Payment
Articles 644 to 682 of the Code of Organization and Civil Procedure.
The costs are provisionally paid by the claimant.
VI. 2) Determining the amount of payment due
VI. 3) Possibility of additional payment
VI. 4) Determining fees and costs
The Court determines the due tax.
VI. 5) Possibility of contesting the fees
VII. Expert liability within proceedings
VII. 1) Are there any laws governing expert examinations?
VII. 2) Expert liability
VII. 3) Mandatory insurance for the expert
VIII. The expert’s status
VIII. 1) Existence of selection criteria (accreditation)
Laws A644 to 682 of the Code of Organization and Civil Procedure
VIII. 2) Classification of skills
VIII. 3) Required qualifications
VIII. 4) Grant of accreditation
VIII. 5) Possibility of accrediting a legal person
VIII. 6) f) Validity period for the accreditation
VIII. 7) Regular assessment tests
VIII. 8) Supervision of the expert’s mission
VIII. 9) Expert’s activity report
VIII. 10) Code of ethics
VIII. 11) Good practice
VIII. 12) Possibility of penalties
VIII. 13) Laws governing the expert’s status