REMUNERATION OF EXPERT – according to EGLE and more

 

eng. ec. Lyubomir P. Gerdzhikov, judicial expert,

Board member of the Expert Association SEFITA, Bulgaria,

member of the Council for Judicial reforms to the Bulgarian Council of Ministers,

Co-chair of the Civil Council to the Supreme Judicial Council of Bulgaria;

 

 

REMUNERATION OF EXPERT –

according to EGLE and more

The appearance of EGLE (European Guide for Legal Expertise) at the end of 2015, without any doubt, is a significant event in the legal existence of the European Union.

And this is not only because it has ascertained new junctures in the field of the civil justice, nor because it has made an attempt to structure the professional appearance of a considerable part of participants in the court proceedings – the judicial experts.

The important contribution of EGLE is found in the realized perception that the justice, in its essence, appears as a public system and for resolving arisen problems in it, or for its development and improvement, a systematic scientific approach should be implemented.

One of the characteristics of the systematic approach is that it requires proportional development of all system elements in order to achieve a general effect of improvement.

From a preliminary review of the grant programs of EC in the field of justice for the previous program period, it is ascertained that most of the programs are focused on betterment of the law enforcement in the different member-states, as well as - for enhancing the cooperation and communication between representatives of the magistrate communities. Therefore, the importance of EGLE is in the understanding that the unilateral convergence of a single element of the justice would not contribute for a general progress in this particular field of the society relations on European level.

The development of EGLE set the beginning of a serious discussion, affecting another significant element of the law enforcement – the judicial expertise, which is now becoming more and more actual in the modern world of complex technological and technical schemes and financial-economic models as well as in the aspect of the trans-border relations.

The importance of the publication may be ascertained in at least two directions – comprehensive (not fragmentary – referring only to particular occurrences) examination of the themes concerning the judicial expertise at European level and their discussion through the eyes of persons with different attitude and position in the justice – magistrates, academicians, lawyers, experts etc., searching for consensus solutions to problems indicated.

Certainly, the expectations that by developing EGLE shall be reached instant effect of improvement at implementation of the judicial expertise are exaggerated. More realistic reading should convince us that there is a long-lasting and hard work to be done before having a product, which may be called „European judicial expertise“.

That is so also because of the fact that the law enforcement as a whole and particularly the judicial expertise are sensitive areas of the society relations, which besides from ascertainment the factual truth in the court proceedings, also have the aim by laws and institutions to „allow people with different points of view to live together in peace“[1].

Reaching a balance between the interests of the entities, participating in the civil proceedings – the judge, the parties under dispute and the judicial expert (if there is an expertise appointed) could be assessed through the general measure of the value as one of the significant elements of the arising relations, but having in mind that it is not the one and only criterion.

Regarding the component of the value, expressing the remuneration of the expert, EGLE introduces its general characteristics – the remuneration has to be fair, but also controlled by the judge.

Of course we have to consider the difference between the legal and private expertise, which can be appointed in relation to initiated liligation. That difference is made also in EGLE, as subject of examination below shall be only the judicial expertise, i.e. the expertise, appointed by the court regardless of the fact which exactly is the Assigning authority of the judicial expert – the judge or some of the parties.

For the due valuation of the actions related to carrying out a judicial expertise, it is necessary to be introduced at least two definitions – what kind of relations arise in connection with the appointment of a judicial expertise and what type of product appears to be the judicial expertise.

As far as the first element is concerned – the arising relations, EGLE has correctly made difference between the expertise in the civil proceedings, which appears subject of its examination, and the expertise in the criminal proceedings – as far as in the last mentioned expertise might be admitted administrative-legal relations, in the case of a civil dispute, though the appointment is by court’s act, there are no substantial differences as compared with the classic contractual relations in delivery of services[2]. When the assignment is made by some of the parties, those relationships are even more clearly stated.

Admittance 1 → In case of appointment of a judicial expertise in the civil proceedings arise contractual relations, typical for delivery of services;

As far as the second element is concerned – the essence of the judicial expertise, it has to be perceived as a technical[3] instrument, with the help of which the evidence in the proceedings take on an appropriate appearance in order to be in use for the purposes of the litigation, i.e. as a means of evidence, having no separate meaning and acceptable only by discretion for being appropriate in the context of the proceedings.

Admittance 2 → In the civil proceedings, the judicial expertise appears as means of evidence, having modal features;

In EGLE is made an assumption that the value of the judicial expertise in the general case should not exceed the claimed interest under the legal dispute, but this is correctly admitted as dispositive norm because:

• Though from a formal point of view the dispute between the parties could be of material nature, it may have also moral importance for each of them,
• Though claimed compensation may not be of great material value, the nature of the dispute might be of significant public interest[4];

In this relation EGLE has appropriately implemented a stage, preceding the appointing itself, during which stage in advance have to be clarified the volume of the work and the costs on performing expertise with the participation of the expert.

Admittance 3 → Upon determination the value of the judicial expertise, the influence is not only from economic, but also from another factors;

Theoretically the economic approaches for identification of a value for delivery of services are similar to those for a market determination of a goods’ value (as far as the material nature of the product is not so important, but more significant is the circumstance whether it is offered its exchange for a cash equivalent), as generally there are three approaches, namely: expenditure, comparative and income approach[5].

 

1. The expenditure approach is based on valuation of inherent-necessary expenditures for a certain volume of work. Most often for that purpose are implemented hourly rates, which are described in tariff guides. As far as the judicial expertise is concerned, such type of guides are implemented for the labor of the expert, as to the calculated remuneration are also added material costs, reported according to relevant documents.

This valuation approach, known also as a „contractor’s method“ or a „method of the depreciated replacement cost“, though being acknowledged in the valuation practice, finds limited implementation. One of the reasons is that the theoretical basis, namely that the  cost and value can be connected, is not so reliable assumption, because the cost is only one of the factors in the valuation and it may not be admitted for sure that the costs have been made reasonably and/or successfully.[6].

The approach, based on expenditure norms, should be used with the required rate of criticism, because it may have at least two negative effects during its implementation for valuation of the judicial expertise:

• regimentation – not taking into consideration the complexity and specific nature of the issues, subject of the expertise, as well as the qualification of the judicial expert,
• procedure overrun – because of a marginal interest of the expert for more long-lasting work, directly and proportional connected with his/her higher remuneration, calculable under tariffs;

Therefore it would be appropriate a differentiation through factors to the tariff rates:

• for complexity and specific nature of the expertise (for instance in three classes of expertise  – А, В, С) – subject of determination by the court ,
• for expert’s qualification (for instance in three experts’ categories according to their qualification and experience) – shown in the judicial experts’ registers;

 

2. Comparative approach – this approach uses as an analogue for defining the value of an appointed judicial expertise already developed and published price-lists of professional organizations for services, delivered by them– for example organizations of auditors, valuators, consultants as well as organizations of engineering, medical and other professional communities.

By the implementation of the above-mentioned approach ought to be made corrections, concerning the development of expertise in the proceedings, compared to those out of the proceedings, which corrections make equal the chosen analogues and their characteristics as technical products.

The comparative approach can be implemented also by use of analogues from the law enforcement system itself – for example lawyers,  jurors, court servants, assistant-judges and etc. but again it has to be taken into account  the specific nature of each particular activity by implementation of relevant correctional factors.

 

3. Income approach, based on discounting future cash flows, which are expected to be generated for a certain period of the activity for rendering services, related to judicial expertise. This approach is hardly applicable, because the tasks, developed by the experts and appointed by the court do not fall within the scope of the term „regulated profession“[7], i.e the assumption concerning the volume of work to be made by the judicial expert appears complicated and non-reliable at least for a reason that it concerns many factors of the public environment and the statistic data would be a weak indicator.

The implementation of some of the above-mentioned approaches and their corresponding methods of calculation – independently or in combination, might be considered as enough proof that from economic point of view the cost of the product „judicial expertise“ is to a satisfactory extent reliably determinable including also for its part as  a „fair remuneration“ according to  EGLE, as well as according to the meaning of the definition for a fair cost, given in the International Valuation Standards (IVS, 2011).

It is disputable the claim, introduced by EGLE, that „in no circumstances“ the remuneration of the expert should be related to the amounts under the dispute and the results from the proceedings, as considering at least the following arguments:

• There is an existing practice the court fees for initiation of a civil lawsuit to be calculated as a percentage from the claimed interest, which to a great extent is a non-sense, because the fee, in contrast to the price, is oriented to the expenditure and should not include added value,
• The tariffs for fees for lawyers’ remunerations include opportunities for percentage calculations. The analogy is reasonable because the lawyer in the proceedings does similar activity to the one, done by the judicial expert – he gives legal grounds to the claim of the party and its arguments, making them in correspondence with the legal basis and in accordance with the statutory requirements, as the judicial expert makes the same from a technical point of view,
• There is no system envisaged, which to be applied for giving premiums in case of reached high results by the judicial expert, which could lead to a risk of formalism and lack of thoroughness of the made studies;

It has to be stated that it is important - from economic point of view in case of arising relations on appointment of judicial expertise, besides its cost, also the conditions of payment. EGLE provides for payment within frameworks of a paid deposit, upon submission of initial report  (payment for engagement), as well as interim payments in case of proven need. For the entire work for producing the expertise it is pointed that „remuneration shall be paid only after submission of the expertise“. But there are no orientation clues how long would last this „after“, which from the expert’s point of view may be an extremely long period of time as considering the circumstance that the sessions of the court on cases of a complex nature and/or many parties and participants might be many times adjourned not for reasons, connected with the expert.

Therefore it is appropriate in regard with the payments to be transposed and adapted for the purposes of the judicial expertise Directive 2011/7/ЕU of the European parliament and the Council of 16 February 2011.

The hearing and argumentation of report by the expert in the proceedings (when this is envisaged) is also reasonable to be considered as an independent and separate engagement from the expertise, which also has to be paid for. The appropriateness for implementation of such remuneration is not envisaged in EGLE.

 

It has to be also taken into account the possibility of another approach to be used for valuation of judicial expertise, namely:

4. Voluntaristic approach, connected with the will of the individual, assessing the value of the expert’s activity – in our particular case the judge and his controlling and ruling function according to EGLE. The issue in implementing of this approach is the circumstance that the judge is in the position of „cognitive paradox“ – the legal expertise is appointed for a reason, that the judge does not hold special knowledge in scientific fields, but later he has to make evaluation on the implementation of such (scientific) knowledge by an experienced specialist.

The improper assessment may cause negative effect in at least two directions:

• In under-estimation of the value – less qualified experts should be interested to work in the field of the judicial expertise and as a result this would deteriorate the quality of the proceedings,
• In over-estimation – a public opinion shall be formed that corruption practices exist and/or criminal association;

In this relation EGLE allows the opportunity the judgment to be subject of the right of appeal, but arbitrating the dispute upon the same reference points may not create expectations for a different final result.

As a possible solution for reaching of mutually acceptable results in case of dispute it might be discussed the implementation of a „control expertise“, appointed by/through the same authority at a national or European level[8], which has approved the registration of the judicial expert in a relevant list.

Of course the consideration for developed judicial expertise is not only expressed in a fair remuneration for a work on particular problems, as long as from the entire statement in EGLE it becomes clear that in relation to the judicial expert there exist much more additional requirements, connected with indirect costs (raising qualification, insurance contracts, maintenance of records etc.), but also with moral engagements.

That’s why as far as the practice is the most used criterion for ascertaining the functionality of a particular theoretic model – in our case this is the balance in the relations in assignment, realization and payment of judicial expertise, it ought to be admired and  supported the initiative of EEEI (European Expertise and Expert Institute) for development of European legal experts register (EUDEX), because the observations and evaluation for its effectiveness would serve as a benchmark for regulations, concerning the judicial expertise at a national level in the EU countries, as well as a resource of good practices.

As a summary of the above-stated it could be emphasize that the person, being a social individual, feels satisfied and happy, when his/her work and input time are paid in a proper way and this affects to the greatest extent the professional realization in the judicial system, which role is to establish equity.

 

08.04.2016

Sofia, Bulgaria