Evolution of the liability of a judicial expert

In examining the views of the doctrine and jurisprudence to date, it should be considered that the admissibility of the civil liability of an expert has undergone considerable evolution over the years. For a long time, the responsibility of forensic experts was questionable or even excluded. In particular, the issue of responsibility to individuals was important third the person ordering the performance of those activities, i.e. the court.

A uniform position in doctrine has still not been reached in determining the subject of legal responsibility. In the course of the amended law and on the occasion of new rulings, they continue to clash two main positions – first declaring responsibility to the court which takes the judgment on the basis of an opinion, and second – directly liable in the event of a defective opinion[1].

Liability of a judicial expert under the umbrella of the management

The original views on the expert's liability were based on the fact that the court expert, in the performance of his or her activities, is subject to the direction of the procedural authority and that the subordinateity ratio limits the expert's role to following the court's recommendations and instructions.

Thus, the expert's responsibility for the possible consequences of his errors was applicable Article 430 kc: ‘Who, on his own account, entrusts the performance of the activity to a person who, in the performance of the activity, is subject to his or her direction and is obliged to follow his or her instructions, is responsible for the damage caused by that person in the performance of the activity entrusted to him’[2].

As a result, the liability for the activities of the expert could be borne by the State Treasury at the most, with evidence of the fault of the court, whose role was limited to the recognition or non-reliability of an expert with special information, remaining at least highly difficult.

Management within the meaning of Article 430 k.c. is the exercise of general supervision of the activities of the entity and the ability to influence it by issuing binding instructions.

The performer shall be subject to the ‘direction’ of the superior throughout the period of performance of the activity, even if the superior does not perform the control and supervision acts, leaving the subordinate with considerable autonomy[3] .

It was widely held that the Treasury was responsible for any action taken by the expert to comply with the order of the court to allow evidence from the expert's opinion, as well as for any effect of the use of the expert's opinion for that purpose.

The wrong decision of the court as a consequence of relying on a misjudged opinion shall be borne solely by the court. K.

Moose takes the wrong view of evidence, wrong choice of opinion author (culpa in eligendo), submission of incomplete material to the expert on the basis of which the opinion was issued, incorrect completion of the test material, lack of proper control, lack of reasonable doubt as to the expertise or impartiality of the expert[4].

These views, as it were, ‘protected’ by judicial experts before bringing damages actions against them for any damage suffered by the parties to the proceedings as a result of unfair opinions.

Personal liability of the expert

The departure from the above-mentioned views can be seen in the judgment of the Constitutional Court dated 12 June 2008, K 50/05 (OTK-A 2008, No 5, item 79), in which the Constitutional Tribunal, having regard to the legal provisions concerning the establishment of a judicial expert, held that the expert was personally responsible for the activities he had carried out, even though the court had obliged him to perform them.

The mere fact that an opinion is ordered by a court does not mean that it takes responsibility towards persons third. The Court of First Instance shall be liable only for its own judgment based on the material collected in the case, including the opinion.

The Court of First Instance shall, in the case of evidence from an expert opinion in order to obtain the special messages necessary for its resolution, draw on the expertise of the opinion, as highlighted in the judgment cited above, must therefore be fully independent.

The independence of the expert’s opinion on the subject matter is not affected by the fact that the expert is obliged to follow the court’s instructions, e.g. the scope of the opinion. The fact that the expert draws up an opinion on the basis of the material collected on the case cannot prejudge that he is independent.

The Supreme Court also took the same position in the judgment dated 29 May 2015, (V CSK 479/14) in addition, that the arguments for the personal liability of the expert for the opinion given in the judicial proceedings also provide the provisions of the Criminal Code and the Commercial Companies Code concerning the liability of the expert for the opinions drawn up, i.e. Article 233(4) kk[5] and. Article 502(1) kk[6] and Article 537(1) ksh[7].

Criminal and civil liability of a judicial expert

The criminal liability of the expert for the presentation of a false opinion to be evidenced in the proceedings Article 233(4) kk.

This regulation, unknown before the entry into force of the current penal code, has been introduced, as is highlighted in the literature, due to increasingly frequent cases of false opinions to serve as evidence in court proceedings.

It is assumed that the question of false opinion exists when the opinion's assessment is clearly in contradiction with the actual state of affairs, with the current state of knowledge in the area concerned, or is based on a clearly incorrect research method.

The opinion is rejected if the expert gives false facts, draws from the facts conclusions which are clearly incompatible with the criteria deemed to be unquestionable in the area to which the opinion relates, or does not confuse the essential conclusions of the studies.

The civil liability of the expert for the opinion is expressly provided for in the provisions of the Commercial Companies Code.

In the event of merger or division of companies, it is appropriate, in accordance with Articles 502(1) and 537(1) ksh – to be tested by an expert on the merger or division plan in terms of correctness and reliability.

The expert shall designate, at the joint request of the merging or participating companies, a registered court for this purpose (Articles 502(2) and 537(2) (ksh).

The expert shall correspond to the merging companies and their shareholders and to the shareholders involved in the division for the damage caused by him; where there are several experts, their responsibility shall be joint and several (Articles 513(2) and 549(2) (ksh).

Judgment of the Supreme Court in the case of reference no. V CSK 479/14 he met with the approval of the general courts, confirmed by, among others, the judgment of the Court of Appeal in Warsaw with 3 November 2016, reference no. I ACa 1767/15, judgment of the Court of Appeal in Białystok of 9 March 2018, reference no. I ACa 905/17 and the judgment of the Court of Appeal in Poznań of 12 December 2018, reference no. I ACa 1394/16.

However, first The precedent ruling in this matter was the judgment of the Court of Appeal in Katowice dated 29 November 2019 (reference no. V ACa 266/18), in which compensation from a judicial expert was duly ordered.

In the present case, the plaintiff claimed that the defendant should be tried against the expert for the damage she had done to him by making a false opinion for the purposes of legal proceedings.

In the justification for the request, the plaintiff stated that as an investor, he was a party to the contract under which the contractor was carrying out construction works in its own building property, where he intended to conduct business.

Since the works were not carried out in accordance with the building art, the plaintiff refused to accept the building and pay the remuneration, and the contractor subsequently made a judicial action and demanded that the remuneration be judged with interest and trial costs.

The District Court ruling in this case relied on the defendant's opinion, which, as an expert against the facts, confirmed the compatibility of the exiled works with the building art and the project.

Consequently, the contractor’s action was taken into account in its entirety and the plaintiff’s counterclaim was dismissed and his appeal was dismissed.

In settling the above dispute as a result of the appeal, the Court of Appeal in Katowice acknowledged the civil liability of the expert and the claimant awarded compensation to the investor stating that ‘There is no doubt that the expert is responsible for the defective opinion, whether the action of the court taken in the proceedings for which the opinion was drawn up was correct or not’. The conclusion of the judgment referred to was as follows:

1. the expert's responsibility for the opinion issued must be determined on the basis of the principles of so-called "delict liability" (Article 415 and next kc),
2. the delict is expressed in breach of the requirements of the expert, i.e. the expectation that the opinion will be drawn up in a conscientious and impartial manner, and in accordance with the knowledge principles and standards applicable in the field concerned,
3. The expert shall be responsible for the opinion given, whether or not and what reservations the parties to the proceedings have made in response to that opinion, or how the court examining the case assessed the question of the reliability of that opinion,
4. Whereas, in order to enable the expert to be held liable for his or her misconduct, it is irrelevant to assess his or her criminal behaviour; i.e. there is no need for prior declaration that the opinion was false within the meaning of Article 233(4) kk,
5. Whereas the decisive moment for the damage to the assets of the injured party by the action of the expert remains the moment of the finalisation of the judgment based on the opinion drawn up. From that date too, the limitation period for the claim against the expert should be counted.

Grounds for legal liability

It is assumed that the question of false opinion exists when the opinion's assessment is clearly in contradiction with the actual state of affairs, with the current state of knowledge in the area concerned, or is based on a clearly incorrect research method. The opinion is rejected if the expert gives false facts, draws from the facts conclusions clearly not in line with the criteria considered to be doubtful in the area to which the opinion relates, or does not confuse the relevant conclusions of the examinations carried out[8].

In principle, a judicial expert may bear civil liability towards individuals third so for damage to property on general terms (Article 415 kc), as well as for non-material damage involving, for example, personal property infringement (Article 24(448) (kc), due to an unreliable opinion in judicial proceedings[9] .

It may also happen that the expert goes beyond the aim and the necessary scope of the opinion he has been given, expressing his assessment, or using unwarranted wording on the subject and on the needs of this judicial procedure, thereby violating the personal interests of the person concerned.

In such a situation, the possibility of civil liability of an expert seems all the more obvious[10].

Nevertheless, it should be borne in mind that the expert's responsibility for the final effect of his work, that is, his opinion, or his liability for a judgment based on that opinion, is different. The Supreme Court case law emphasises that a judicial expert may be held accountable to individuals.

third for damage caused by the issuing of a false (unfair) opinion in judicial proceedings. Its responsibility is independent of the envisaged under Article 4171(2) The liability of the State Treasury for the damage caused by a final judgment, issued using a defective judicial opinion, found illegal[11].

For the inadmissibility of creating an unreliable opinion, the expert may be subject to compensation for an offence within the meaning of civil law (Article 415 and (c) and criminal liability for a crime typified in the form of a false opinion to serve as evidence in judicial proceedings or other proceedings (Article 233(4) (kk).

Termination of the claim

In order to accept the liability of a judicial expert, it is necessary to classify a particular expert conduct as unlawful, the fact of the damage and its amount and to establish that there is a normal (adequate) causal link between the conduct of the expert and the resulting damage.

It is important that the order of examination by the court of these premises cannot be arbitrary. First, Whereas it is necessary to determine the action(s) from which, as the injured person claims, the damage has arisen and to assess its illegality and the fault of the perpetrator, then to determine whether the damage has occurred and what kind. Only after it has been established that these two conditions occur can it be possible to investigate the existence of a normal causal relationship between them.[12].

As a general rule, the claim for compensation for damage caused by an unlawful act is subject to limitation over the years third from the date on which the injured person was found out or, with due care, could have known about the damage and about the person responsible for repairing it.

In the case of a claim for damages resulting from a criminal offence, the limitation period for the claim shall be 20 years, from the date of the crime, no matter when the victim's unfair opinion became aware of the damage. In the case of criminal liability, the limitation period is 15 years.

Summary

The expert responds personally to individuals third for the acts it performs and the fact that an expert is ordered by the court does not mean that the expert is relieved of that responsibility. Consequently, judicial experts may be held liable for damages suffered by the parties to the proceedings as a result of unfair opinions, where there is a causal link between the damage arising and the unlawful conduct of the expert. This responsibility should be examined on an individual basis.

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1 K. Knoppek, E. Jaskiewicz, Evaluation of the bill on forensic experts – remarks de lege lata i de lege ferend [in:] Polish Civil Process, Regulation (EU) 2/2015, p. 173

2 T. Fork, Expert Judge [in:] Expert in court, Conference in 40. anniversary of the death of Prof. J. Sehn, Kraków 2005, p. 88.

3 Judgment of the Supreme Court of 25 November 2005 (V CK 396/05, Pr. Bank. 2006, No 11, p. 16).

4 K. Moose, Insurance of the OC of the legal expert [in:] Properties, Wyd. C.H. Beck Regulation (EU) 6/2008.

5 Criminal Code in the wording Article 233(4) Who, as an expert, expert or translator, presents a false opinion, expertise or translation to serve as evidence in a specific procedure Under section 1, is sentenced to imprisonment from one year to one year 10.

6 Article 502. section 1 Criminal Code: Penalty sentence may be ordered to impose a restriction of freedom or fine of up to 100 daily units or to 200,000 PLN.

7 Article 537. KSH Study by an expert plan for the division of the company section 1. The allocation plan shall be subject to an expert examination on correctness and reliability.

8 Judgment of the Supreme Court of 29 May 2015, V CSK 479/14, LEX No. 1793715.

9 Supreme Court Judgment dated 29 May 2015 V CSK 479/14.

10 Judgment of the Court of Appeal in Białystok of 9 March 2018, And ACa 905/17, LEX No. 2558930.

11 Supreme Court judgment of 29 May 2015, V CSK 479/14, LEX No. 1793715.

12 Supreme Court judgments: dated 19 July 2012, II CSK 648/11, Lex No. 1215614; dated 18 April 2001 I PKN 361/00, OSNP Directive 2003/3/62.