A guide to the UPC and the UP - Flipbook - Page 344
– When and under what conditions the expert may receive other relevant information;
– The time period for the presentation of the expert report;
– Information about the reimbursement of any expenses incurred;
– Information about the sanctions which may be imposed on a defaulting expert; and
– The expert’s duties under r.186 RoP.
17-75 The appeal of an order to appoint a Court expert is admissible within the scope of rr.220(2)
and (3) RoP. Pursuant to these rules, a party can appeal orders either together with an appeal
against the decision on the merits or with the leave of the Court of First Instance. The former
alternative would be too late for a party who does not agree with the choice of the Court to
appoint an expert, and the latter would leave the decision to grant an appeal to the Court’s
discretion. A party can, however, if the Court refuses to grant leave to appeal, submit a request
for a discretionary review of the Court’s order to the Court of Appeal within 15 days of such
refusal. 113 R.220(4) RoP explicitly provides for the opportunity to deny the request without
giving reasons, but that does not mean that the request will not be dealt with seriously.
The ability of the standing judge to decide the issue without providing reasons for the
decision was merely introduced to stop the appeal from slowing the proceedings down too
much. Nevertheless, as can be seen from the explanatory notes of the Legal Group of the
Preparatory Committee, it was the Legal Group’s opinion that the Court of Appeal should
“step in only in those cases of importance that merit a decision”. 114 The RoP does not provide
any guidance on the standard to be applied, leaving it to the discretion of the Court.
Duties of a Court Appointed Expert
17-76 The overriding duties of the Court appointed expert are set out in art.57(3) UPCA; the Court
expert shall guarantee independence and impartiality. The Court expert’s role is to supply
the Court with expertise it is lacking in a certain field. Thus, it is crucial that the Court expert
is as impartial towards the parties and the subject matter of the case as the Court itself.
This approach of requiring the Court expert to be objective and impartial is consistent with
the position in other jurisdictions. For instance, the German Code of Civil Procedure stipulates
that the expert must prepare the report in an impartial manner and to the best of their
knowledge and belief, and the expert is sworn in with an oath worded to that effect.
17-77 The rules governing conflicts of interest applicable to judges set out in art.7 Statute apply by
analogy to Court experts. 115 Court appointed experts are not therefore entitled to take part in a
case in which they:
– Have taken part as adviser;
– Have been a party or have acted for one of the parties;
– Have been called upon to pronounce as a member of a court, tribunal, board of appeal,
arbitration or mediation panel, a commission of inquiry or in any other capacity;
– Have a personal or financial interest in the case or in relation to one of the parties; or
– Are related to one of the parties or the representative of the parties by family ties.
It is not clear how and when the Court appointed experts are asked about any conflict of
interests. It is assumed that this will be done before the expert is appointed.
113
114
115
r.220(3) RoP.
“Table with explanatory notes to the changes made by the Legal Group of the Preparatory Committee in the 17th draft of the
Rules of Procedure” 31 October 2014, p.16.
art.57(3) UPCA.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 334
