This Code of Conduct was drawn up at the request of the Council for the Judiciary and under the responsibility of the national consultative committees of chairmen of the District Courts and the Courts of Appeal. It is based on the code of conduct of the Netherlands Register of Court Experts (NRGD), as it is intended to realise in time a single, universal Code of Conduct for Court Experts.
The following matters were taken into consideration in this connection :
- Experts that have accepted their appointment are required, pursuant to Article 198 of the Code of Civil Procedure or, as the case may be, Article 8:34 of the General Administrative Law Act, to perform their assignments impartially and to the best of their ability.
- The expert must be suitable for rendering a report in civil law and/or administrative law cases. That suitability lies in the required expertise and the person of the expert. The expert will therefore have to satisfy the five key values of independence, impartiality, conscientiousness, competence and trustworthiness, which have been elaborated below.
The following have also been taken into consideration in this connection.
- The expert in civil law cases will be obliged to comply with the Guideline for Experts in Civil law Cases.
- The medical expert in civil law cases will be obliged to comply with the Guideline for Medical Experts in Administrative law Cases.
- The expert will be obliged to comply with standards that apply to his profession, however they may have been laid down.
This Code of Conduct applies both before and after the acceptance of the assignment by the expert. The Code of Conduct also applies in the event that the expert engages the assistance of internal employees and/or third parties in the performance of the assignment. The expert guarantees that the above parties will observe the Code of Conduct.
§ 1. Scope
The Code of Conduct applies to experts appointed by the District Courts, the Courts of Appeal and the Dutch Administrative High Court in civil law and administrative law cases.
§ 2. Key values
The expert will, each time, in the performance of the duties he is charged with, take the position of an independent, impartial, conscientious, competent and trustworthy expert.
These key values correspond to those that form the starting point for the NRGD Code of Conduct. In addition, the (statutory) rules that have to be observed by the expert on a different basis also apply.
§ 3. The expert
The expert will independently arrive at his judgment on the basis of his expertise, will provide information in respect thereof and will report thereon. This also applies if the expert performs the assignment in cooperation with other experts.
The expert may be instructed to provide information about a certain field or he may be instructed to conduct an investigation. Providing information is usually not based on an investigation, or, at any rate, this is not always necessary. The expert will be obliged to render his own judgment in a recognisable manner and independently from the other experts, also if he reports in cooperation with others.
The expert undertakes to stay abreast of developments in his area of expertise.
- The expert will not be prejudiced or biased.
- The expert does not have a substantive interest in the performance of the assignment.
- The expert will not be led by a substantive interest of the commissioning party or any third party with respect to the performance of his investigation, the findings thereof and the conclusions based thereon.
In this document, the term ’substantive interest’ will be taken to mean the interest the commissioning party, the expert or any third party may have in an outcome of the investigation that is favourable to this party and in such statement thereof in the report and in the provision of information. The Article requires the expert to be impartial, which is a requirement that may go so far that the semblance of partiality is prevented as well. The term ’commissioning party’ will be taken to mean the person who, in first instance, issued the assignment to provide information or to issue a report.
The expert will notify the commissioning party of any relevant influencing or attempt to do so during the performance of the assignment without delay and in writing, also if the influencing or attempt to do so originates from the commissioning party. The expert will include the aforementioned notification in the report.
The written notification, also in the event the (attempt to) influence originates from the commissioning party itself, has to guarantee the expert and the users that he reports exclusively on the basis of his expertise. In all circumstances, the commissioning party will be the competent authority in this context for the expert to whom the (attempt to) influence has to be notified ; the notification will also be included in the report.
The expert will notify a (potential) conflict of interest without delay and in writing to his commissioning party. The expert will include the aforementioned notification in the report.
The expert will notify his commissioning party without delay that he is/was involved in any manner in the relevant case or in a previous investigation involving one of the parties or the subject in dispute.
Information on any form of (previous) involvement of the expert in the relevant case is of importance to the (future) commissioning party and users. Think in this connection of involvement of the expert with one of the parties or with the subject in dispute. In such cases, the expert will report this immediately in writing.
§ 4. The activities
The expert will perform his activities within the limits of his expertise.
Expertise is broader than professional competence. An expert must also act within the boundaries of the required legal knowledge. This concerns knowledge with respect to legal procedure and knowledge concerning the legal terminology that is used.
- The expert will perform the assignment personally.
- If the expert employs the assistance of additional experts in the performance of the assignment, he will do so in accordance with the relevant agreements concluded with the commissioning party for this purpose. The expert will report the expert third parties engaged by him in his report.
- The expert will report the names of additional experts engaged by him when providing information and issuing a report.
- Following on from Article 1, this Code of Conduct also applies to the aforementioned third-party expert, to the extent he assists the expert in the performance of his assignment.
The expert will remain personally responsible for the information provided by him and the report issued by him, also in the case that he engages the assistance of additional third-party experts.
The expert will perform his duties to the best of his abilities. It may be necessary in this context to engage third-party experts. The expert will document the activities performed by the third-party expert or internal employee by including the (sub)report in his own report. The object is to make clear to the user how the report was formed. The assignment implies that the expert may engage an internal employee for whom the expert is personally responsible.
If the expert, in the performance of his activities, deviates from the rules and standards that apply to the exercise of his profession, he will report this explicitly and in writing to his commissioning party.
This could concern rules and standards of institutions and/or associations to which the expert is affiliated or of which he is a member.
Such deviations may be unavoidable in certain circumstances and may have various forms and backgrounds. The point is that they are reported.
- The expert will ensure the required quality of the investigation. The expert will report the limitations of the methods used.
- The expert, in the performance of the assignment, will make exclusive use of appropriate methods, equipment and materials.
The expert, within the scope of his assignment, will personally collect all required research material or will have this done (partially) under his responsibility.
The expert will handle the research material collected by him with due care ; he will keep it available for contra expertise to the extent possible.
Experts are not allowed to disclose research material and data other than :
a. in the context of the performance of the assignment ;
b. for scientific purposes, provided these dated cannot be traced back to persons or agencies involved in the case and the expert maintains the confidential nature of the data as much as possible.
Some experts are also required to observe confidentiality with respect to confidential information pursuant to legislation and professional codes that apply to him as a professional. This rule of conduct must, in such cases, be considered as an addition to the aforementioned legislation and professional codes.
The expert will request the commissioning party to provide a written explanation of the assignment issued, or to be issued, if there are any ambiguities.
If the assignment (to be issued) cannot be performed, because :
a. it falls outside the scope of his expertise,
b. the activities to be performed cannot be completed in time,
c. the budgeted costs of the activities prove insufficient
d. the expert does not possess the required facilities or equipment,
e. there are, in the opinion of the expert, compelling circumstances that obstruct the performance of the assignment,
f. the assignment cannot be performed for other reasons in the opinion of the expert,
the expert will report this to the commissioning party without delay and in writing, while stating the reasons.
While the expert is, after acceptance of the assignment, required to perform the assignment, if the assignment falls outside the scope of his competence then the expert cannot be expected to comply with obligations arising from the assignment.
If the findings within the relevant area of expertise can reasonably lead to a wide range of interpretations or conclusions, the expert will report this when providing information or when issuing the report.
The expert will report, if applicable, that his findings are open to several interpretations and will indicate in that context what, in his eyes, are the most plausible interpretations and, if possible, what the related conclusions are. An expert cannot be expected to mention all possible interpretations and the conclusions to be attached to them. The purport of this addition is that the report anticipates a possible debate between experts. This promotes, on the one hand, that any debate centres on the reported interpretations, and, on the other hand, this could perhaps prevent any unnecessary debate between experts.
- The expert will limit the investigation, the information and the (oral) report to what is necessary for the performance of the assignment.
- The expert will report, with due observance of the rules and standards that apply to the exercise of his profession, in writing to his commissioning party the facts and circumstances that are relevant to the case.
The expert will, in principle, be required to report within the terms of reference of the assignment. However, if the expert, on the basis of his expertise, is of the opinion that he should make remarks that are not strictly related to the aforementioned terms of reference, but which are of importance for the case, he will report this to his commissioning party.
The expert will perform his activities openly and visibly for all parties. This implies that he
- hears the parties, if possible in each other’s presence, with due consideration of the privacy of each of the parties ;
- enables the parties to make comments with respect to the draft report ;
- Incorporates the comments of the parties in his draft report, stating his substantiated response to those comments ;
- reports every contact with the parties ;
‘Hearing’ does not include medical examination.
§ 5. The information and the report
The expert will provide soundly substantiated information formulated in a comprehensible manner and will issue a soundly substantiated report.
The report must be understandable to the commissioning party and the parties who are not experts in the relevant field of expertise. This entails, inter alia, that specific terminology must avoided as much as possible, or explained.
The expert will draw up a report in respect of the investigation in such a manner that it can be verified.
In principle, a different expert in the same area of expertise must be able to reproduce the investigation on the basis of the information contained the report and then assess whether he arrives at the same conclusion. This obligation also includes the expert’s willingness to make available the data that he has collected during the investigation, also if they have not been used by the expert.
§ 6. Final provisions
This Code of Conduct will be referred to as ‘Code of Conduct for Court Experts in civil law and administrative law cases’.
Utrecht, January 2012
This code of conduct, which must be considered an instrument for quality improvement for Court Experts in civil law and administrative law proceedings, has been adopted by the Dutch Administrative High Court and national consultative committees of chairmen of the District Courts and the Courts of Appeal, namely :
- LOVBel : National Consultative Committee for the Chairmen of the Tax Law Sectors of the Courts
- LOVC-Courts : National Consultative Committee for the Chairmen of the Civil Law Sectors of the Courts ;
- LOVF-Courts : National Consultative Committee for the Chairmen of the Family Law Sectors of the Courts ;
- LOVB : National Consultative Committee for the Chairmen of the Administrative Law Sectors of the District Courts ;
- LOVCK : National Consultative Committee for the Chairmen of the Civil Law and Subdistrict Sectors of the District Courts ;
- LOVF : National Consultative Committee for the Chairmen of the Family and Juvenile Law Sectors and Units.