In this seventh article on European court experts, we focus on how the Dutch use expert evidence ("Deskundigenbericht") in their courts. The procedure is set out in Articles 194 to 207 of the Dutch Code of Civil Procedure (“Wetboek van Burgerlijke Rechtsvordering”).
When can expert evidence be used?
Prior to bringing a claim, an interested party can request the court to order a preliminary expert investigation: Article 202. It must be made to the court which has jurisdiction to hear the claim and must contain:
- A description of the potential claim
- The issues or items on which the expert opinion is sought
- The name and address of the opposing party (or the reason why these are unknown to date)
A request for an investigation will usually be granted unless the court considers the request an abuse of process or has other substantive objections (e.g. it is disproportionately intrusive, if a party has already been subjected to a number of medical examinations). The court must set out its reasons for refusing a request (HR 19 December 2003, NJ 2004, 584Wustenhoff/Gebuis). The expert’s evidence may be provided in a report or orally at a hearing.
Orders granting a preliminary expert investigation are final: Article 204. On the other hand, the dismissal of a request can be appealed.
Where an action is already pending, a court can make an interlocutory order for an expert investigation on the application of any party or on its own initiative: Article 195. According to case law, once proceedings have been commenced, the court may determine whether it already has sufficient expertise and, if so, may dismiss the application. Although the Netherlands does not apply a doctrine of binding precedent, the Supreme Court is obliged to uphold uniformity in law. Dutch lower courts will usually follow higher courts’ decisions in similar matters. Case law is therefore an important supplementary source of law.
Under Article 200 a party can ask the court to hear an expert who is not appointed by the court. Again the court has discretion whether or not to admit such evidence and hear the expert. A party has no right to have an expert appointed (HR 16 April 1999, NJ 1999, 666, P. Clausing).
On rare occasions, an expert may be appointed to address purely legal issues (HR 11 March 1994, NJ 1995, 3 HJS).
How is the expert appointed?
Once the court has ordered an expert investigation, parties submit the names of potential experts for its consideration. The court then makes an interlocutory order, appointing the expert(s) and setting out the precise issues to be addressed and giving a deadline for the filing of the expert’s report.
Since expert evidence may prejudice the interest of one of the parties, the expert can, on accepting the appointment, stipulate conditions limiting his liability for damages.
How does the expert carry out his function?
The expert carries out his investigation independently or as directed by the court: Article 198. An important feature of the Dutch legal system is the so-called “principle of reasonableness and fairness”: Article 3:12 of the Dutch Civil Code. The court may not only use this principle to deal with any legal lacuna not covered by agreement between parties or statutory provisions. Further, it may be applied to replace statutory provisions, contractual terms or conditions agreed by the parties, if the outcome would be unacceptable in terms of prejudice to the interests of a party. The expert does not take an oath on appointment (as some jurisdictions require) because he is appointed by the court and thus deemed to be impartial and competent. On accepting the appointment, the expert is obliged to carry out his task impartially and to the best of his knowledge. Failure to do so constitutes a crime, carrying a maximum of four months’ imprisonment or a maximum fine of €7,600: Article 192 of the Dutch Criminal Code.
Parties are obliged to cooperate with the expert. The court may draw the conclusions it deems appropriate from a party’s level of cooperation.
Prior to filing the report at court, both parties are given an opportunity to review and comment on the draft report. The expert has complete discretion whether to deal with the comments before filing his final report. He must attach to/include in the final report any comments and requests by the parties in response to the draft report, but has no statutory obligation to respond substantively. An exception is provided by Article 7:464 of the Dutch Civil Code. Parties, who have been subject to a medical examination by a court expert, have the right:
- Of prior inspection of the report
- To prevent the medical report being sent to the opposing party or the court
If the opposing party is an insurance company with a medical adviser, the medical adviser owes a duty of confidentiality and may inspect the report (HR 22 February 2008, RvdW 2008, 256; Fortis/Y).
The final report must state the grounds for the experts’ conclusions and be signed by him. If an expert is unable or unwilling to sign the final report, the court clerk states the reason for this and signs the report instead.
The court is not bound by the experts’ conclusions and has complete discretion how to assess the expert evidence. The expert’s report is primarily for information and not considered indisputable evidence. It is, however, unusual for a court to ignore or contradict expert evidence. A court must give substantiated reasons for doing so in its judgment (HR 14 November 2003, NJ 2004, 74).
How can the expert be challenged?
Dutch procedural law does not allow parties to influence the expert’s appointment or the manner of his investigations as much as in other European countries. Since 1923 Dutch procedural law no longer allows parties to challenge an appointed expert on the grounds of facts or circumstances which could prejudice his impartiality.
Article 194 does not allow appeal against an expert’s appointment. However, if the expert declines the appointment or is unable to carry out his task, the court may appoint another either on its own initiative or at a party’s request.
There has been some pressure to impose on the expert the mandatory disclosure of his experience, positions held and other circumstances which could be relevant to his competence or impartiality prior to accepting his appointment and reintroduce the right to challenge an expert. To date, however, a party arguing that an expert cannot carry out his task properly, may only request the court to appoint another expert instead. The court has complete discretion to uphold the party’s arguments and appoint a new or additional expert.
Once the report is filed, the parties may submit their comments on it in a statement after an examination. Such comments may be supported by an expert opinion given by the party’s expert. Once these submissions have been made, the court (if it considers itself sufficiently informed) gives its judgment without further comments or submissions by the parties.
How is the expert remunerated?
Article 199 allows experts to be remunerated and indemnified. The court may decide whether any party should deposit any further advance on the expert’s fee. It is customary for the claimant to pay this advance. The party who eventually bears the costs of expert evidence depends on the terms of the court’s cost award.