Minutes of the workshops

Minutes of the workshops

Recommendations of the 4 workshops

RECOMMENDATIONS WORKSHOP 1: APPOINTING AN EXPERT: MISSION AND EXPECTATIONS

  1. Principles regulating the use of judicial expertise

Judicial expertise is a court-ordered appraisal or implemented by the parties with the judges approval or under his control.

It should be ordered only if it is necessary to solve the dispute, if there are no easier, quicker or cheaper means of evidence.

  1. Conditions and tools available to the judge and/or the parties to select an expert

A European-wide frame of reference should be established, periodically reviewed and publicly available. It should allow the judge to accurately pick a relevant expert who will have been subject to review, including on the level of ethics, either by a national judicial or administrative authority, or by a recognised professional order, or by a yet-to-be-determined European entity, and who will provide guarantees of technical competence, impartiality and independence.

  1. Type, content and form of the mission the experts autonomy

The experts mission must be restricted to technical questions.

This mission must be defined as precisely as possible since it binds the experts activity.

The judge can, on his own initiative or at the parties request, change the experts terms of reference, depending on the progress of his mission, which has to mandatorily comply with the principle of adversarial debates.


RECOMMENDATIONS WORKSHOP 2: EXPERTISE PROCEEDINGS AND THE EXPERTS REPORT

  1. Judges control over the expert proceedings

The experts independence does not exclude a monitoring by the judge:

the judge must have the necessary resources to manage the case(dealing with incidents related to the experts person, to the scope of the mission) and to monitor the requirements for a fair trial during the expertise proceedings (reasonable time frame, contradictory procedure, reasonable costs)

the expert has the right to seek directions in writing from the judge in any matter to do with the case

the judge should on his own motion, having heard the parties, or at the parties request, be able to restrict or extend the experts mission, within the observance of res judicata, or to extend the timeframe of the mission,

the judge should be able, on his own motion, and having heard the parties, replace an expert.

At the beginning of the expertise, the expert should agree with the court a preliminary timeframe and /or stages for completion of the report.

  1. Requirements for a fair trial

The possibility for the parties to effectively discuss the experts technical findings before the expert submits his opinion entails that:

they know what evidence has been submitted to the experts analysis and the technical basis on which the conclusions are reached

they have his substantiated technical opinion in writing prior to the hearing before the judge.

The judge is the guardian of the adversarial nature of the expert examination.

In one of the groups a consensus could be reached on the proposal that there should be a preliminary report in all cases.

In the other group there was an agreement in principle with the formal disclosure of the expert opinion between the parties but it was not held necessary that there is a preliminary report. Other methods of disclosure were discussed such as exchange of information or a meeting.

  1. The report

The preliminary report, if there is one, should have the same structure as the final report.

The report that closes the expert examination and should be submitted to each of the parties before they present their claims and requests to the judge should thus include, in theexperts as well asthe judges language:

a summary of the entrusted task,

the several steps of the experts investigation

the list of evidence examined by the expert and the list of evidence retained,

presentation of the investigations carried out by the expert,

a description of the findings made by or on behalf of the expert,

the analysis done of said evidence by the expert,

The observations made by the parties on the preliminary report and on the experts answers therein,

the experts reply to and detailed technical opinion on each of the judges questions, unless the expert states why he is unable to reply to one such question

a detailed statement of time and expenses incurred by the expert for his work

On the judges own motion or at the parties request, the expert can be called upon to complete or clarify his report either orally or in written form.

Having discussed the structure and content of the report in the UK, the group thought that this solution would give the necessary structure without being too prescriptive.


RECOMMENDATIONS WORKSHOP 3:QUALIFICATIONS, COMPETENCE AND ASSESSMENT OF EXPERTS

  1. A well-known competence, identified and recognizable

How can we certify the experts prominence, independence and competence with regards to the European courts?

A register should be drawn up at a European level following a registration procedure by gathering the existing registers in the various European Union countries. The national competent authority will provide information on the experts availability for an European assignment.

Registration at a national level implies a level of technical competence, sufficient training in the guiding principles of the fair trial and in procedural rules as well as in the experts code of conduct and in expert procedures, and the ability to write a report in an understandable manner for all parties involved.

On a European level general guidelines will be developed on criteria for abilitation.

Each member state must thus implement a registration procedure allowing it to assess the candidates degrees, his professional experience and his morality and his knowledge on expertise proceedings.

At a European level there should be developed a set of transnational procedural rules regarding expertise and the expert.

  1. Qualification of experts

Should one appoint an entity which can attest that the legal expert has undertaken adapted and up-to-date training in proceedings?

For a renewal of his abilitation the expert has the duty and obligation to undertake continuing professional development covering his area of competence, as well as the proceedings rules which regulate expert examinations and expert practices in his specialty. And it should be verified by a national abilitation body.

  1. The assessment of experts

Should the expert be attached to a standardised evaluation entity?

a. Registering means that the authorities drawing up the register must regularly reassess the experts on the register by ensuring, among others, that they have undertaken continuing professional development training and by obtaining the opinions of the judges who referred them. The opinions of the authorities must take into account the quantity and quality of reports submitted.

b. The judge should take part in the assessment of the experts.


RECOMMENDATIONS WORKSHOP 4: THE STATUS AND ETHICS OF EXPERTS: FREE EXERCISE AND LIABILITY

1. One status

The designation of the expert is by reference to a body of rights and duties.

  1. One code of ethics, possible penalties

To ensure compliance with these duties it will be necessary to establish a European wide body of regulations and ethical principles with a means of ensuring compliance.Compliance with this body of regulations and ethics will be a determining factor in the authority of the expert to practice and to produce reports and testimony in legal proceedings.

The code of conduct needs to take into account the ethical obligations of the expert to the legal process.

  1. Free exercise and liability

The francophone and anglophone workshops agree that a principal ethical obligation of the expert is to maintain sufficient professional insurance for the protection of the clients and other parties affected by errors made in the production of expert testimony and reports.