Private expert report – the legal nature and the costs

Jolanta Budzowska        17 July 2019        Comments (0)

A private expert report is a statement based on expertise that is not obtained from an expert appointed by the court. Rather, it is drafted upon the party’s request in order to assess the chances of winning the case, and thus often determines whether the proceedings will be started at all. Given the complex nature of personal injury cases, and the need to prove both the guilt as well as the chain of cause and effect, its significance in such cases becomes even greater.

Problems with the status

According to the prevailing opinion, a private expertise is not an expert witness report (in the meaning of article 278 of the Polish Code of Civil Procedure) and should be treated as a part of the party’s arguments[1]. If a party submits the opinion with a clear intention to treat it as evidence in the case, there are grounds to consider it as private document evidence[2]. However, a private document only proves that a person who signed it made the statements contained therein; the content of such a document is not subject to the presumption of truth, and can be challenged. Courts can’t rely on expertise presented in private evidence, as a private expert is not an expert witness, and can’t be heard as such[3].

Regardless of the complicated status of private expert reports in civil proceedings, their importance is unquestionable, and they are increasingly acknowledged by the courts in litigation practice.

The question that  often arises in connection with such reports concerns the costs connected with obtaining them.

Damage or costs of legal proceedings?

There is a minority view that the costs of a  private expertise should be treated as the party’s necessary expenditures connected with the pursuit of their rights, and as such, they should be a part of the costs of proceedings, which shall be reimbursed by the losing party. The judicature, on the other hand, tends to consider the costs of a private expert report as damage. Initially, the Supreme Court of Poland, in a case concerning the liability of an insurance company, ruled that the costs of necessary pre-trial legal assistance rendered to the victim are not a recoverable head of loss. [4]. With time, this line of reasoning has changed, and now there is a clear tendency to treat other justified expenses incurred after an accident, and in relation to it – including the aforementioned costs of necessary pre-trial legal assistance – as a part of the party’s damages.

In July 2018, the Supreme Court accepted a motion based on the need to  provide legal interpretation of provisions  that create inconsistencies in court judgments. . The motion’s rationale points out that it is widely approved that the costs of a private expert report borne by the injured party may be subject to compensation, provided that obtaining the private report was justified, necessary and that it remains in a normal causal relationship with the damage.

In the end, who is going to pay?

The Supreme Court in its judgment of 29th May 2019 ruled that the costs of a private expert report should be reimbursed to the claimant, but only when such report was necessary to effectively pursue damages. Otherwise, the claimant will have to bear these costs.

The question still remains whether these costs would be adjudicated as a part of the compensation awarded to the claimant, or treated as a part of the costs of proceedings. If the latter position is adopted, the winning party will be, in principle, reimbursed, although the various consequences of adopting either of the two options differ significantly.

For answers to these questions, and for more insight into how the Supreme Court understands the “necessity to effectively pursue damages”, we have to wait for the justification of the recent judgment, which is yet to be released.

[Article by Paweł Fortuna]

[1] the Judgement of Supreme Court of 26th September 2000, ref. no III CKN 413/00.

[2] pursuant to art. 245 of the Polish Code of Civil Procedure; the Judgement of Supreme Court of 19th December 2012, ref. no II CNP 41/12.

[3] the Judgement of Supreme Court of 12th April 2002, ref. no I CKN 92/00.

[4] the Judgement of the Supreme Court of 7th July 2003, ref. no IV CKN 387/01.

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