Civil legal expert examination in Netherlands: Situation and development

 

 

By Nico Keijser

Judicial Experts in the Netherlands are governed by only a few articles in the Dutch Civil Procedure Code. More recent guidelines have been produced by the Council of the Judiciary, which include a Code of Conduct that experts are bound to follow. Several developments have shaped the manner in which judicial experts perform their tasks. Combined the Guidelines, the Code of Conduct and the Model Expert Opinion (recently adapted) the judicial expert has clear guidance to enable him to perform his tasks adequately. However, the process is ongoing.

Civil Procedure Code

Articles 194 through 200 to 202 of the Dutch Civil Procedure Code deal with experts and it is only these eight articles deal explicitly with the Expert’s Opinion. There is an article covering the appointment of an expert and there are articles that prescribe that the expert should perform his duties to the best of his knowledge, and if he does not possess the required expertise that he should not accept the assignment. There are rules about the costs of the engagement and who is to pay these costs in advance. The rules stipulate the way the expert is to perform his investigation, where in practice the judge rules on the material issues rather than the expert deciding on any matter. One of the most important rules is set out in Article 198, paragraph 2, dealing with audi alteram partem. If the expert does not allow both parties to be equally presented in his investigation, the report cannot and will not be used by the judge.

Types of expert investigation

In the Netherlands (like in other countries) expert investigations in civil law, may be performed in several ways :

  • Party appointed experts (one party)
  • Party appointed experts (both / all parties)
  • Court appointed experts in preliminary procedure
  • Court-appointed experts

Party appointed experts are – as is in the name – appointed and also paid by one or in some cases by both of the parties. Although party appointed experts are found within registers and amongst persons who frequently are appointed by the court, most of the time, the value of a single party appointed expert in most procedures is lesser. If the expert is not by the judge, it is likely that the other party will attempt, most likely, to discredit the report as being favourable or biased in favour of the party appointing the expert. However reports by experts applying all the rules for an independent investigation (as they would do being a court-appointed expert), sometimes included the audi alteram partem principal, tend to be of higher value. There are some known cases where a party expert’s report, with the consent of the other party, was used by the judge. Cases where both parties appoint their own expert are mostly seen in private litigation. By using an expert familiar with the formal Judicial Expertise procedures, parties ensure that they will be provided with a thorough and adequate investigation and report. This makes a settlement of the conflict more likely and any report more acceptable by both parties.

Currently a discussion is beginning, and slowly gathering momentum, that a party appointed expert should meet less distrust with the counter party and with the Court when a party appointed Expert has done a thorough and adequate investigation and has abided the audi alteram partem principal. The usage of the report produced in that way has been established as Expert Opinion that should be by the Judge. The report itself must be consistent and logically structured, and must answer all the correct questions based on the subject matter that are the issues in dispute between the parties. It must also show the documents it is based on, as well as the relevant theories on the subject matter. Of course the independence of the performing Judicial Expert, and that of Judicial Experts in general, should be of (much) higher importance.

By Dutch law it is possible to ask a judge to appoint an expert in a situation where one of the parties is not sure about his technical position, or has lack of evidence, that being in possession of the other party. The claimant may then start a preliminary procedure with the judge and request a judicial expert to be appointed to investigate the technical issue. The rules the expert performing this preliminary investigation are exactly the same as a ‘regular’ mission. The only factual difference is the moment in time in the legal process when the appointment is made and the investigation is done.

Court-appointed experts can be appointed at the request of one of or both parties, or at the initiative of the judge. Both parties may suggest the expert to be appointed, however the judge decides. In the past the judge would not substantially investigate the quality and knowledge of the person or persons suggested, especially not when both parties suggested the same person. Over time Courts have acknowledged their own responsibility in appointing an adequate expert. Judges who have no knowledge of a technical subject matter are in general not able to choose an expert with relevant knowledge. This has become known as the ‘knowledge gap’. This is why there is a need for registered judicial experts that has emerged.

Previous failures and changes

Since the year 2000 there has been a lot of discussion in the Netherlands, related to a series of major procedural failures in criminal law. In cases where an expert was used and the suspects were sentenced to imprisonment, later investigation found that the experts did not have sufficient expertise in the field they operated, or did not have this expertise at all. Judges had to be helped to know by what criteria and expert may be called an expert and be used as such. From 1 January 2010 a new law on “Experts in criminal cases” applies. This law constituted a register for experts who wish to perform as judicial expert for Dutch criminal judges. This register is called Netherlands Register of Court Experts. In criminal law cases judges are obliged to appoint a registered expert, and have to explicitly motivate the appointment of a non-registered expert.

Parallel to these developments, the same problems occurred in civil cases. Being the outcome less confronting for parties – they will not go to jail – the financial damages can be substantial as well as e.g. reputational damages. For experts performing in civil law cases in fact the same aspects of quality are applicable. Also in civil law cases judge’s rulings must be taken upon adequate expert opinions. If not done so, public trust in justice will in the long term diminish.

Guidelines and Codes of Conduct

When the expert and the expert’s role in the judicial process became more of interest to all parties involved, several documents came to life.

There now exist a set of practice directions and Codes of Conduct :

  • Practice direction for experts in Dutch civil law cases
  • Practice directions for medical experts in administrative law cases
  • Code of conduct for Court experts in civil law and administrative law cases
  • Code of conduct for Court experts in criminal law cases
  • Model Expert Report

Practice directions (both for civil and administrative Law) are an explanation as well as an addition to the relevant articles from the Civil Procedures Code. These documents are usually supplied to the appointed expert, together with the judge’s decision on the appointment. The practice directions are, as is in the name, directions to the expert.

The Codes of Conduct have a more formal status. Any court-appointed expert may be held accountable to work according to the applicable Code of conduct. Not doing so, may result in forced withdrawal of the appointment, or a correction by the appointing judge. Neither of these is favourable for the expert’s reputation. There is always a chance that the verdict will be published. Names of parties will be anonymised, whereas Expert’s names will be readable for everyone.

The Model Expert Report is a handy document that gives the Expert direction not to forget any information. However the document is not usable for all fields of expertise. Many experts have comments on the Model and use their own. Advantage of using a Model for the judges is evident, as they have to read Expert Opinions more frequently and then do not have to worry on ‘discovering’ the structure of that on every case. The appointing court makes the necessary documents available and applicable for the expert’s mission in the accompanying letter.

An expert appointed in a civil case now has to deal with the following documents, and has to do so in the sequence noted here :

  • Judge’s ruling on the appointment of the Expert
  • The accompanying “letter of instruction” sent by the Registry of the Court
  • Dutch Civil Procedure Code
  • Practice direction for experts in Dutch civil law cases
  • Model Expert Opinion
  • Code of conduct for Court experts in civil law and administrative law cases
  • Code of Conduct of Expert’s Professional Body

This sequence is based top down, being less specific to the case at hand and the mission of the Expert. If any contradictions occur the Expert should motivate in his written report why he is working according the one or the other document.

Ongoing process

Within the professional bodies in the Netherlands the process of developing the work of Judicial Expertise and Experts is in progress. Rulings of judges shape the work of Experts :

  • how must they perform their investigation,
  • how do they deal with the audi alteram partem principal,
  • how do they deal with parties not cooperating ,
  • how do they deal with lawyers disturbing the process, only to name some facts a Judicial Expert will meet.

The Experts registered with the LRGD regularly meet to discuss these matters as well as learn from each other. The input from the European Expertise & Expert Institute (EEEI) is very welcome in this debate.

The present article is just a brief description in general wording on the work of judicial experts in the Netherlands. I can speak on the subject for days. Together with two colleagues I have written a practical guide for judicial experts in the Netherlands (ISBN 978-90-8692-059-4).

If you have any questions on the subject matter, please feel free to contact me. I will be happy to answer your questions. Please use info@lrgd.nl

* Nico Keijser LL.M. BBA CDPO is
Secretary of the board of Dutch Register of Judicial Experts LRGD
Chairman of Dutch Forensic Financial Institute (NFFI)
Secretary of the board of the Netherlands Association of Sworn IT Experts (NVBI)
Member of the Executive Committee of the European Expertise & Expert Institute (EEEI) 

The Eurexpertise project made it possible to draw up an exhaustive inventory and objective analysis of the rules and practices used in the field of civil expertise throughout the EU, and to propose to the European authorities consensual reform suggestions to decrease the amount of divergences.

The country profiles resulting from this work are presented in the final report Eurexpertise, published in 2012 and are progressively updated under the supervision of the Institute and published in partnership with the journal Experts.

The description for Netherlands has been updated and published in Experts Review n ° 130 of February 2017, thanks to the voluntary work of contributors from the European judicial and expert world.

With the kind permission of Marie-Hélène Bernard, editor of the Revue Experts.