In The Key (May 2010), we looked at how French court experts work. This time we focus on Belgium.
A new procedure for expert evidence came into force on 1 September 2007 with a reform of the Code Judiciaire (CJ). The changes tackled long-standing criticisms that the existing procedure was too long, too complicated and too expensive.
The effect of the reform remains to be seen, however, as the intended improvement is to be achieved through enhanced judicial control of the conduct of the expert’s investigation. In the past, though, Belgian courts have proved notoriously slow.
Using expert evidence
A judge may appoint experts on technical, scientific or other specialised issues if they think this is necessary to resolve a case or where legal action is threatened (see article 962 CJ).
So a court can appoint an expert before a substantive action is launched – a practice we have already encountered in France – as an interim protective measure. A judge might want to do this, for example, in order to protect a party’s rights while investigating a temporary state of affairs; to limit continuing exposure to loss; or to determine disputed factual issues early on. Otherwise, appointing an expert is deferred until the parties have filed pleadings and disclosed documents.
Article 875 bis CJ requires a judge to limit evidence-gathering to the steps that are necessary to determine the litigation by the simplest, fastest and least burdensome means. This echoes the English principle of proportionality when using expert evidence.
The court appoints an expert either on its own initiative or on a party’s application. The judge usually only appoints a single expert, unless more are necessary (see article 982 CJ).
As in France, the courts maintain registers of experts from which the appointment is usually made. Although the court makes the formal appointment, the Belgian regime is not as rigid as its French counterpart. The choice is not limited to experts with formal court accreditation. In addition, the parties can agree to nominate the proposed expert, who will then be appointed provided the court is satisfied that they have the suitable expertise to enable the court to understand and resolve the issues in dispute.
The parties can also instruct their own experts privately to advise on technical issues. These private specialists usually participate in (and shadow) the investigation carried out by the court-appointed expert, who may ask them for their views on the issues under examination. However, their role is not a formal one, being first and foremost to support their client’s arguments. Their conclusions will usually be omitted when the court expert finalises his or her report.
The order for the investigation (served by the court) usually:
- summarises the circumstances rendering the investigation necessary;
- identifies the appointed expert(s);
- describes precisely the scope of the investigation; and
- fixes the date of a case conference, unless this is waived by the judge and the parties.
The expert has eight days to refuse the appointment (giving reasons for doing so) or – unless a case conference is ordered – to notify the place, date and time when they will start their investigation. The expert informs the parties, judge and lawyers by registered letter.
Once an investigation is ordered, the parties are obliged to collaborate with the expert. If they do not, the judge can draw any appropriate conclusions.
A non-participating party can still become involved without further formality at any stage of the investigation, including attending (or being represented) at meetings or sending written observations to the expert (see article 980 CJ).
The investigation is, however, treated as having complied with the principe du contradictoire (the natural justice – as discussed in the context of French proceedings). Consequently, a defaulting party cannot challenge decisions made or actions taken during the investigation.
The case conference
The case conference takes place in chambers in front of the judge ordering or supervising the investigation. The parties must attend but the expert may be contacted by telephone or other means of telecommunication (such as video conferencing, for example), unless a party or the judge requires their personal attendance.
At the case conference, the judge deals with:
- the scope of the investigation and its possible amendment;
- the place, date and time of the subsequent activities of the expert;
- the need for assistance from technical advisers;
- provision for the expert’s fees;
- the period of time to be allowed for the parties to make observations on the expert’s draft report; and
- the period for filing the final report.
All this is new, forming part of the court’s more proactive role in managing and supervising the investigation. If the initiating order does not provide for a case conference, the judge can give the above directions when ordering the investigation.
Before the conference, the parties must send the expert a list of all the relevant documents. If there is no conference, this must be done before the expert begins their investigation.
The reform puts the judge very much in overall control of the investigation, which is very different from the position in France. Article 973 CJ sets out a detailed procedure, stipulating that the judge:
- will follow the course of the investigation and supervise it so as to ensure compliance with time limits and the principe du contradictoire;
- may (for reasons of urgency) abridge time limits or adjust procedural formalities;
- may attend the investigation process personally (however, unless he or she has been specifically asked by the parties to take this step, the judge must inform the experts, parties and their counsel – including any non-participating parties – that he or she will do so);
- will determine any disputes relating to the investigation, whether between the parties or with the expert, including requests to replace the expert or to extend (or prolong) the investigation. Such disputes are dealt with by summonses heard in chambers, with deadlines for filing briefs, the hearing and the reasoned determination of issues.
The conduct of the investigation
As in France, the expert usually instigates a series of meetings or inspections. They draw up notes of meetings, sending a copy to the judge, the parties and their counsel.
If the deadline for filing the final report exceeds six months, the expert will draw up a progress report every six months (see article 974 CJ). This is then sent to the judge, the parties and their counsel, detailing the investigations already carried out, the investigations since the last report and the investigations still to be carried out.
If the expert wants an extension of time for filing the final report, they may ask the judge, giving reasons for their request. The judge can refuse the extension if they think it is unjustified and must give reasons for their refusal. If the deadline is exceeded without a prior request for an extension, the judge will summon the parties for an explanation.
Unlike in the French procedure, the Belgian expert must attempt conciliation between the parties. If they do reach agreement, the expert must:
- declare the investigation to have no further purpose;
- lodge at court the terms of settlement, the parties’ documents and notes, plus a detailed account of the expert’s fees and expenses; and
- send the parties (and their lawyers) a copy of the terms of settlement, plus an account of the expert’s fees and expenses.
Otherwise, on completing their investigation, the expert will issue their proposed findings as a provisional opinion (see article 976 CJ). If there has been no case conference, the expert will fix a reasonable deadline (taking account of the nature of the litigation) for the parties to file observations. The expert will not take into account any observations received after this deadline, and will exclude them from the pleadings.
Filing the report
If there is more than one expert, they will prepare a single report with multiple views, stating reasons for any differing opinions. The report must be signed by all the experts.
The original final report, the documents and notes of the parties, plus a detailed account of the expert’s fees and expenses, are then filed at court. The report must:
- be dated;
- record who attended the meetings, their verbal statements and their requests;
- record documents and notes disclosed by the parties (reproducing them to the extent necessary to discuss the issues); and
- be signed by the expert(s) (otherwise, the report will be null and void), preceded by the following statement: “I swear that I have fulfilled my assignment in honour and conscience, with accuracy and probity.”
On the date of filing, the expert needs to send a copy to the parties and their counsel.
The judge does not have to follow the expert’s opinion.
If the report does not clarify the issues sufficiently, the judge can:
- order a further investigation by the same expert;
- instigate a new investigation by another expert, who may ask their predecessor for any relevant information;
- hear a statement from the expert; or
- at the request of the parties, hear their technical advisers.
If the judge hears a statement from the expert, then the expert can refer to the relevant documents during the hearing. The expert’s statement will be minuted in a report signed by the judge, the court clerk and himself.
As parties may be joined to the proceedings at any time during their course, the Code Judiciaire provides that the outcome of the investigation cannot be raised in argument against any party joined after delivery of the provisional report unless that party waives this right. Parties joined after the investigation has started cannot, however, require it to be restarted in the absence of prejudice by the expert.
Challenging the expert
A party can challenge the appointment of an expert. However, they must have good reasons for doing so, such as:
- the inappropriateness of the expert’s skill and knowledge to the issues at stake;
- the expert’s pre-existing relationship with the other party; or
- the expert’s previously expressed views suggesting that they will not give an unbiased opinion.
Any expert aware of a reason for challenge must declare it immediately and stand aside if they are not released by the court or the parties (see article 967 CJ). If chosen by the parties, the expert can only be challenged for reasons occurring (or becoming known) after the appointment.
Any challenge must be made before the case conference – or, if there is no such conference, before the expert begins their investigation – unless the grounds for challenge have only come to light subsequently. The challenge must be made within eight days from the party becoming aware of the grounds for objection. The expert then has eight days to accept or dispute the challenge.
The judge determines the issue, having heard the parties and the expert in chambers. If the challenge is dismissed, the challenging party may be liable to pay damages to the expert, who, if awarded such damages, cannot remain in that role. If the challenge is allowed, the judge will automatically appoint a new expert, unless a choice is agreed.
If requested, the judge may replace an expert who does not fulfil their assignment correctly (see article 979 CJ). If the parties make the request jointly, the judge must replace the expert. The judge determines the application in chambers, giving reasons for the replacement, and immediately appoints a new expert.
A replaced expert must lodge the documents, notes of the parties and an account of their fees (plus expenses) at court within 15 days.
The expert’s remuneration
At the case conference, the judge will:
- estimate the overall cost of the investigation or the method of calculation;
- fix the amount of any deposit and a deadline for making it; and
- determine how much of the deposit can be released to the expert.
On payment, the court or credit company will inform the expert and pay any part approved for release to them. The judge may draw the appropriate inferences if the deposit is not paid by the deadline. If the expert considers the deposit or the part released insufficient, they can ask the judge for a supplementary deposit or additional release. However, the judge will refuse the application (giving reasons) if they think it is unjustified.
The expert must submit a detailed account of fees and expenses with their final report. If there are several experts, the collective account must indicate their shares clearly.
Once the report is issued, the judge will fix the amount of the fees and expenses (unless the parties agree these figures) without regard to the possible damages and interest. In doing so, the judge will take special account of the rigour of the investigation, the compliance with deadlines and the quality of the investigation undertaken.
The assessment is enforceable against the funding party or parties. When the court gives its final judgment, these sums will be assessed as legal costs.