Experts Dutch proceedings

09 November 2006

Eggo Jan Rietema, Laura Grijpma

Introduction

According to the Netherlands Code of Civil Procedure a court can order an expert examination at the request of a party or on its own initiative by interlocutory judgment. It is completely at the court’s discretion whether or not an expert examination is ordered. This means that in circumstances where a judge considers that his own knowledge is sufficient, a request for an expert hearing can easily be denied. It is also established case law that a party cannot complain if its request to appoint an expert, or its offer to hear an expert, is denied by the judge.

Court procedure

Once a court has ordered an expert examination, each party proposes the names of several potential experts. The court then appoints an expert that is satisfactory to both parties. An interlocutory order is made, which contains the questions that the expert should answer and lists the names of the experts that are appointed by the court. It is not possible to appeal against the appointment of these experts. Any expert who accepts an appointment is obliged to carry out the order impartially and to the best of his knowledge. Since 1 January 2002 a party can also request that the court hears a non-appointed expert witness. If a court allows this, the opposing party will also get a chance to hear a non-appointed expert witness.

The execution of the order results in an expert opinion in writing or a verbal report to the court during a hearing. An oral hearing may be ordered, particularly if the court wants further clarification by the expert on his findings. In that event, the registrar of the court will prepare a record of the hearing in writing. The expert’s initial report is treated as a draft report which the parties can react to and/or ask questions which the expert needs to take into consideration. Ultimately, a final report is issued, which the parties can respond to by the written statement.

It is also possible for parties to request a preliminary expert examination. Unlike an expert examination that takes place during the proceedings, in the case of a request for a preliminary expert examination, the court has no discretion. The only situation where a court can disregard such a request is where there are facts or circumstances which indicate violation of the principles of due process, abuse of power, waiver of rights or forfeiture of rights.

Purpose of expert opinion

Expert opinion is mainly for informative purposes. It is to be regarded more as a measure of inquiry than as indisputable evidence. This does not mean that the expert opinion cannot contribute to the factual evidence or to better understanding of the facts. Ultimately, the evidential value of expert opinion is at the discretion of the court. In circumstances where a court ignores the findings of an expert the reasons for doing so should be explained in the judgment.