VALENTINA LYTVYN, ATTORNEY AT BARRISTERS JSC: “PUT ON PAUSE” — EXCLUSIVELY FOR “LEGAL PRACTICE”

Pause

The appointment of a forensic examination may result in the suspension of proceedings in the case, which always works in the defendant’s favor and negatively affects the protection of the plaintiff’s rights and interests.

Expert examination plays a very important role in commercial proceedings. It is one of the primary means of proof in many categories of disputes heard by commercial courts, since in the administration of justice in the field of commercial legal relations, it is very often necessary to establish circumstances (facts) which require specialized research and expertise. In particular, this applies to disputes related to the protection of intellectual property or disputes concerning the performance of contracts, where it is not possible to determine the scope and quality of the services or work performed without specialized knowledge. However, the court cannot always independently determine the circumstances of the parties’ performance of their obligations under commercial contracts without conducting an economic and accounting expert examination.

This institution and its mechanisms for application in commercial proceedings have changed significantly since the entry into force on December 15, 2017, of the Law of Ukraine “On Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedural Code of Ukraine, the Code of Administrative Procedure of Ukraine, and Other Legislative Acts.”

Expert Review—Before Trial

One of the key principles of the new Commercial Procedural Code of Ukraine is the full implementation of the adversarial principle. This principle is enshrined, in particular, in Article 74 of the Commercial Procedure Code of Ukraine, Part 4 of which expressly provides that the court is prohibited from collecting evidence regarding the subject matter of the dispute on its own initiative. The only exception is when the court has doubts regarding the parties’ good-faith exercise of their procedural rights or fulfillment of their obligations to gather and submit evidence. In other words, when taking procedural actions to gather evidence on its own initiative, the court must justify its decision with relevant circumstances and facts indicating that a party has abused its rights.

This principle is reflected in an amendment to the Civil Procedure Code of Ukraine, which establishes the right of a party to the case to conduct an expert examination on its own initiative without a corresponding court order (Article 98(3) of the Civil Procedure Code of Ukraine). At the same time, the provisions of the new Civil Procedure Code of Ukraine do not contain any restriction requiring that an expert examination be conducted exclusively within the framework of the relevant court proceedings, as was the case under the previous rules, when expert examinations were appointed exclusively by the court.

Thus, an expert examination may be conducted, for example, by the plaintiff even before filing a corresponding motion with the court and submitted as evidence along with the complaint.

If such an expert examination meets the requirements set forth in the Civil Procedure Code of Ukraine and the Law of Ukraine “On Judicial Expertise” (the examination was conducted by a certified judicial expert in a specific field of science, the expert’s report states that it was prepared for submission to the court and includes a disclaimer by the expert regarding their awareness of criminal liability for a knowingly false opinion), the court must take it into account and evaluate the expert opinion along with other evidence in accordance with the rules established by Article 86 of the Civil Procedure Code of Ukraine.

Judicial Skepticism

At the same time, as practice shows, the court views forensic expert opinions conducted at the initiative of a party to the case with distrust, and views such conclusions with skepticism; consequently, it very often orders a repeat expert examination within the framework of commercial proceedings, defining a scope of similar issues on which the expert had already provided conclusions in the initial examination.

However, in accordance with the provisions of Part 2 of Article 107 of the Commercial Procedure Code of Ukraine, when deciding to order a repeat expert examination, the court is required to justify, in accordance with Article 86 of the Commercial Procedure Code of Ukraine, why the conclusions reached by the expert in the initial examination raise doubts as to their correctness, what constitutes their lack of justification, their contradiction with other case materials, etc.

These justifications must be well-founded and must include references to specific circumstances of the case and other objective evidence indicating the unfounded nature or inconsistency of the expert’s answers to the questions posed to him.

At the same time, in decisions to order a repeat forensic examination, courts generally fail to adequately justify exactly what the doubts regarding the accuracy of the expert’s opinion consist of. Only general concepts and provisions of procedural law are cited, without specifying the specific circumstances of the case or the expert’s conclusions on which the court based its determination that the evidence is inadmissible or questionable.

Such judicial skepticism always works in the defendant’s favor, since the appointment of a forensic examination often results in a stay of proceedings, and, as practice shows, conducting an examination is not a quick process; it requires a significant amount of time. Such delays in the consideration of the case benefit the defendant and negatively impact the protection of the plaintiff’s rights and interests, as they prevent the plaintiff from exercising their right to judicial protection and restoring their violated right.

Well-Founded Appeal

Based on the foregoing, in cases where the court unjustifiably orders repeated expert examinations, it is advisable to exercise the right to appeal the court’s ruling ordering the expert examination (Article 255 of the Civil Procedure Code of Ukraine), which is also a new provision of the Civil Procedure Code of Ukraine.

When appealing a court order appointing an expert examination, the appeal should be substantiated not only by the aforementioned provisions of procedural law but also by referring to the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), which, pursuant to Article 9, Part 1 of the Constitution of Ukraine, forms part of Ukraine’s national legislation, and to support such reasoning with the case law of the European Court of Human Rights (ECHR).

In particular, ordering a repeat expert examination without proper legal grounds constitutes a violation of Article 6 of the Convention, which stipulates that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal, as provided by law, to settle a dispute concerning his rights and obligations of a civil nature or to determine the merits of any criminal charge brought against him.

At the same time, an unjustified suspension of proceedings in the case constitutes a violation of the plaintiff’s right to a fair and public hearing within a reasonable time.

Furthermore, when appealing an unfounded court order appointing an expert examination, it is necessary to point out the requirements for a judicial decision (in the broad sense of this legal category), in particular, the provisions of Article 236 of the Civil Procedure Code of Ukraine, which states that a court decision must be well-reasoned, adopted on the basis of a complete and comprehensive examination of the circumstances, with an assessment of all arguments presented by the parties to the case, as well as the case law of the European Court of Human Rights (ECHR), in which the European Court (citing Article 6(1) of the Convention) requires courts to provide reasoning for their decisions.

These rules for appealing an unfounded court order appointing an expert examination apply not only to a repeat examination but also to a supplementary, commission-based, or comprehensive examination. When ordering any of these examinations, the court is required to justify in its ruling the necessity of conducting it, namely: why establishing these circumstances is necessary for resolving this specific case; which circumstances within the scope of the evidence will be the subject of the examination; which factual circumstances of the case must be established through this expert examination; and why their examination requires the specialized knowledge of precisely these specific experts.