In civilian cases concerning construction law, it is crucial to establish method facts – especially in the case of executive defects, structural defects, errors in investor supervision or neighbouring damage. In specified situations, the question arises: is the expert’s opinion sufficient, or is it essential to appoint a judicial expert? The answer requires an knowing of the differences between the 2 means of evidence. It frequently happens that the parties in the process present conflicting opinions – which 1 has more power?
The expert's opinion – erstwhile and why is it necessary?
According to Article 278 § 1 of the civilian Procedure Code (k.p.c.), the court shall consult experts erstwhile the case requires expertise. The expert shall be appointed by the court (of his own motion or at the request of the party) and his opinion shall constitute a complete means of proof, to be assessed by the court on a free assessment of the evidence (Article 233(1)).
Characteristics of the expert opinion:
- drawn up at the request of the court or at the corresponding request of the parties,
- is based on procedural documentation, local imagination and sometimes at a method hearing,
- may be supplemented, explained or confronted with another evidence,
- is evidence from expert opinion as defined Article 278(1) k.p.c.
Important: expert opinion can be utilized only during judicial proceedings.
Private opinion of the expert – can he replace the expert?
Opinions by experts, construction experts or engineers on behalf of the site do not have the same power as the expert's opinion. These are private papers within the meaning of Article 245 k.p.c., which means that they only supply evidence that the individual signing the paper has made a circumstantial declaration.
The procedural implications of private opinion:
- The court treats her as the party’s claim supported by a document,
- does not replace the expertise of the court,
- may be the basis for requesting the appointment of an expert,
- does not benefit from the presumption of impartiality.
Such an opinion is usually prepared at pre-trial stageto aid the website measure the method situation. Although it may be helpful, the court will usually order its own expertise.
In court practice expert opinions are far more important. Only they can be independent basis for the facts, e.g. in cases of:
- construction defects,
- scope and costs of repairs,
- the correct execution of the works.
However, the private opinion of the expert is ancillary:
- facilitates the knowing of the substance at an first stage,
- may justify the request to appoint an expert,
- forces the opponent to address circumstantial arguments.
Practical conclusions – what is worth knowing before the trial?
- Expert opinion is useful before bringing the case to courtbut will not replace the expert opinion.
- If the case goes to court, most likely to be called expert.
- To challenge the expert's opinion is difficult – the court frequently accepts its findings as binding.
- In the event of an adverse expert opinion, it is worth submitting allegations and request his hearing.
When is the expert’s opinion peculiarly needed?
- Complaints of construction works,
- Disputes with developers,
- Damage caused by defective performance,
- Conflicts between contractor and investor.
Summary
Although a private opinion from an expert can aid prepare the case, final decision depends on the expert’s opinion. It is so worth taking into account the request for a procedural strategy from the beginning.
In case of doubt, it is worth consulting a lawyer to avoid unnecessary disputes.The information on the website is simply a description of the legal position at the date of publication and is not a legal advice on an individual case. The legal position of publication may change. The law firm is not liable for utilizing an alert to solve legal problems.
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Expert opinion and expert opinion on construction matters – what has more evidence?
