Pursuant to Article 278(1) of the Code, in cases requiring peculiar information, a court may, after proceeding the parties' requests for the number of experts and their selection, invitation 1 or more experts to consult them.
It follows from the substance and intent of the evidence from the expert's opinion that if a case requires peculiar information, evidence from the expert's opinion is necessary.
Meaning and weight of evidence from expert opinion
Against the background of another evidence, in peculiar witness evidence and
the parties, the evidence from the expert's opinion distinguishes the circumstantial subject matter, purpose, nature and circumstantial criteria for the assessment.
This was brought to the attention of the ultimate Court, in accordance with the caselaw and doctrine established in this regard, in its judgement of 1 July 1969, I CR 149/69 (‘New Law’ 1971, No. 5, p. 743), in which it stated that the expert's opinion was intended to facilitate the court's due assessment of the collected material erstwhile peculiar information was needed.
Expert opinion on facts
The evidence from the expert’s opinion must not itself be the origin of the factual material of the case or, in any case, be the basis for determining the circumstances under examination.
The evidence from the expert's opinion is fundamentally not utilized to find the facts but to measure them by the prism of peculiar messages. The court is appointed to make any determinations in the process and not to run (yes: ultimate Court judgement of 20 January 2015, V CSK 254/14.).
The Parties should establish and show the facts from which the legal effects are derived and the expert is liable for highlighting the circumstances explained from the position of the peculiar messages, taking into account the evidence collected during the trial and the evidence made available (yes: ultimate Court judgement of 11 July 1969, ICR 140/69).
Form of presentation of the findings in the expert opinion
The findings and conclusions of the expert as set out in the opinions, as provided for in Article 285(1) of the Code, should be expressed in a unambiguous and firm manner and supported by a factual, logical and coherent argument (yes: judgement of the Court of Appeal in Gdańsk of 6 November 2013, Ref. Act III AUa 1219/12).
Verification of expert opinion by the court
The expert’s opinion shall be subject, like another evidence, to an assessment in accordance with Article 233(1) (the rule of free assessment of evidence), but shall be distinguished by circumstantial assessment criteria. They shall be consistent with the principles of logic and general knowledge, the level of expert knowledge, the theoretical basis of opinions, the motivation and the degree of firmness of its conclusions.
As has been said, the subject of the expert's opinion is not the presentation of facts but their assessment on the basis of expertise (special messages). It is so not subject to verification as evidence of facts on the basis of the criterion of fact and falsehood. They are not valid for the assessment of this evidence to be uncompetitive for the assessment of witnesses and participants in proceedings on the facts at issue (yes: order of the ultimate Court of 7 November 2000, Act mention I CKN 1170/98).
Opinion of experts on the judicial case
The ultimate Court in its judgement of 13 October 1987, Ref. Act II URN 228/87 stated that the court could not take a position different from that expressed in that opinion on the basis of its own assessment of the facts.
Under no circumstances may an expert opinion, which the court has not convinced, be verified and, in particular, disqualified without the usage of expertise. The Court cannot, contrary to the expert opinion, supply the court with the expertise essential to measure the wellness position of the applicant for the provision of pensions, including the kind of medical conditions involved, the degree of their advancement and the severity of the ailments associated with them, which are together with the ability to execute employment or deficiency of specified capacity, based on its own conviction, general knowledge, logical reasoning principles, which for understandable reasons do not include specialist medical cognition (cf. ultimate Court ruling of 29 November 1949, WaC 167/49, fresh Law of 1951 No. 2, p. 62; judgments of the Social Insurance Tribunal of 9 February 1949, TR 123/48, not published and of 23 December 1958, I TR 107/57, Jobs and Social safety No.11, and ultimate Court judgments of 23 May 1986, IV CR 116/86, LEX No. Act mention I UK 344/15).
Divergent medical opinions of experts on applicable matters
The ultimate Court has repeatedly pointed out that in the case of the issue of 2 diverging medical opinions, it is incorrect to base the findings on 1 of these opinions, without any explanation of the contradictions (such as the ultimate Court judgment: dated 15 July 1998, act II UKN 126/98, OSNAPiUS 1999 No 13, item 436; of 16 September 1998, act II UKN 220/98, OSNAPiUS 1999 No 18, item 597; of 19 September 2000, II UKN 722/99, OSNAPiUS 2002 No 7, item 169; of 8 February 2002, act II UKN 112/01, OSNP 2003 No 23, item 580; of 24 June 2013, act II PK 324/12, LEX No 1375181).
Where the divergence of views on medical issues is not due to errors or inaccuracies in 1 opinion, the argument for 1 or the another position requires expertise. In specified a situation, a 3rd opinion is needed in order to clarify the dispute or to request an oral explanation of the differences by experts who have carried out opposing medical assessments of the insured person's wellness (cf. ultimate Court judgement of 5 April 2007, I UK 309/06, LEX No 470001).
Although the court is not required to accept evidence from the opinions of further experts in any event where the submitted opinion is unfavourable to the party, it is required to accept specified evidence erstwhile conflicting opinions of experts have been issued in the case (yes: judgement of the ultimate Court of 2 February 2010, act No II UK 172/09, LEX No 584202).
The Court of First Instance should not replace experts erstwhile it comes to obtaining peculiar medical information (yes: judgement of the ultimate Court of 27 October 2005, I UK 37/05, LEX No 276237), and so arguing with experts in the area of peculiar information, without consulting another expert or by supplementing the expert’s position, which has given a different ruling, infringes Article 233 § 1 k.p.c. (yes: judgement of the ultimate Court of 10 January 2012, Case I UK 235/11, LEX No 1129324).
In its judgement of 12 January 2016, I PK 18/15 (LEX No 2023154), The ultimate Court pointed out that, where peculiar evidence from expert opinions is the subject of an assessment of the court, it is an irregularity to base the findings on 1 of these opinions without clarifying and resolving the contradictions between them. It is then required that the authors of conflicting opinions be counter-rejected (such as the ultimate Court ruling of 13 September 2016). Act mention I UK 344/15).
In its judgement of 7 July 2005, Case II UK 277/04 (OSNP 2006 No 5-6, item 97), the ultimate Court argued that there was a breach of Article 233 § 1 of the General Court, erstwhile the court had disputed in a sphere requiring peculiar information with the expert's conclusions without supplementing the expert's position, which had issued different opinions or without consulting another expert. This thesis is based on the presumption that the assessment of incapacity for work requires peculiar messages and must be supported by evidence from experts.
Although in the context of the freedom granted to him in the assessment of evidence, the court may not only, but should besides consider the opinion of 1 expert as convincing, and the opinion of another expert disqualify (yes: judgments of the ultimate Court of 19 July 1952, Ł. C. 207/52, fresh Law 1953 No. 5, p. 80 and of 24 August 1972, II CR 222/72, OSPIKA 1973 No. 5, item 93), but cannot trust solely on its own knowledge, separated from specialist medical knowledge.
Additional expert opinion
The fact that, in accordance with Article 286 kpc, the Court of First Instance may request an additional opinion from the same or another experts does not mean that, in any case, this is necessary, that specified a request may arise from the state of the case and be subject to the judgement of the court. erstwhile submitting specified a request, the organization shall show errors, contradictions or another defects in the expert opinion submitted to the file, which disqualify that opinion, thereby justifying the establishment of additional opinions.
The Court of First Instance is not obliged to take into account the party’s request to appoint the same expert one more time or to accept evidence from another expert’s opinion, if the opinion satisfies the conditions of Article 285 kpc (has a justification) and the organization does not show the flaws of the opinions disqualifying it as a origin of evidence (yes: judgement of the Court of Appeal of Gdańsk of 6 November 2013, Ref. Act III AUa 1219/12).
The question of whether the Court of First Instance should appoint another experts and enrich the evidence for further opinions was clarified in the ultimate Court judgement of 15 February 1974, 817/73 (not published), according to which all the rules of evidence and, in particular, Article 217(1) of the General Court (which states that a organization may mention facts and evidence until the court is closed). so , if the court has received from experts the peculiar information essential for substantive and appropriate ruling , there is no request to require that evidence be renewed or supplemented .
The appointment of another expert is only justified if the expert's opinion is incomplete, incomprehensible and does not answer the question put in the order (yes: judgement of the ultimate Court of 4 August 1999, I PKN 20/99, of 14 May 1997, II UKN 108/97).
The ultimate Court expressed the same view in its judgement of 21 November 1974, Ref. Act No. II CR 639/74, OSPIKA 1975, z. 5, item 108, stating that if the expert opinion is so categorical and so convincing that the court considers a peculiar condition to have been clarified, it is not mandatory to further correct its conclusions. The acceptance of evidence from further experts shall be justified only if the opinion is incomplete, incomplete, unclear and divergent.
The judicature emphasises that the court is required to first request an expert supplementary opinion erstwhile the opinion is incomplete (cf. ultimate Court judgement of 16 September 2009, I UK 102/09, LEX No 537027; of 14 January 2011, II UK 160/10, LEX No 786386; of 16 October 2014, II UK 36/14, LEX No 1548261, and ultimate Court judgement of 13 September 2016. Act mention I UK 344/15).
A negative expert opinion for the organization and a request for an additional opinion
It is not a condition justifying the application for an additional expert opinion that the opinion already submitted is not favourable to it. The party's message that it does not agree does not mean that the opinion is flawed (yes: ultimate Court judgments of 10.03.2011 II UK 306/10 item Lex No 885998, 14.01.2011 ref. II UK 160/10 Lex No 786386 , judgment of the Lublin Court of Appeal of 25 August 2011, Ref. Act I ACa 316/11 Lex No. 1095795).
Expert opinion in breach of the party’s right to take part in the examination
The usage by experts of materials for which they have based their opinion on the case in a manner that infringes the party's right to participate in the evidence proceedings may form the basis of an appeal.
This follows that, as has been said, the expert’s opinion cannot trust on actual findings. Therefore, the admission of evidence from an expert’s opinion should usually take place at the time that the factual material was collected to enable the expert to deliver an opinion (yes: judgement of the Court of Appeal in Rzeszów of 29 April 2014), Ref. Act I ACa 208/14).
Request of the organization to exclude the expert
Until the completion of the expert's activity, the organization may require its exclusion for reasons on which the justice may be requested to be excluded. Where a organization submits an application for exclusion of an expert after he has begun the activity, it shall be required to show that the reason for the exemption was later or that it was not known before.
Time limit for the expert's opinion
Before ordering the implementation of the opinion, the court should set a realistic deadline for its implementation with the expert. In the event that the Court of First Instance has sent a announcement to the expert without fixing the time limit, and the expert has indicated that it cannot draw up an opinion within the specified time limit giving the reasons for this, the Court of First Instance may accept the time limit given, or search another expert who will draw up an opinion earlier (yes: judgement of the Court of Appeal in Krakow of 5 May 2016), Ref. Act I Acz 721/16).
Advance payment to expert opinion
Pursuant to Article 288 kpc, the president may grant the expert an advance on expenditure.
Complaint of the amount of the advance to the expert opinion
In accordance with Article 394(1)(9) of the Code, the contested provisions/orders are to find how the parties bear the costs of the process. It is so crucial to consider whether, as regards the rules on the costs of the process, the parties are besides obliged to pay an advance to an expert.
On this question, the Court of Appeal in Krakow of 6 June 2018, Ref. Act I ACz 634/18, replied in the affirmative argument that since point 9 of the above-mentioned provision, the legislator separately referred to as a chargeable order for costs, whether a process or a court order (reimbursement of costs, a charge of costs, if the organization does not submit an appeal on the merits of the case, the costs granted in the order for payment, the reimbursement of the costs of unpaid legal aid granted of his own motion), it is justified to conclude that the order/order for advance on the expert’s opinion is subject to appeal as a order/order laying down the rules for the parties to bear the costs of the process.
Amount of expert remuneration
In the light of Article 288 k.p.c., the expert shall have the right to request remuneration for the work performed. erstwhile examining a claim for payment, the Court of First Instance is required to take into account the required qualifications, time and effort needed to deliver an opinion and the amount of expenditure essential to carry out the operations.
The Court of First Instance is besides required to examine whether an opinion has been drawn up within the limits of the evidence and to carry out the verifications indicated in the expert's work card: the appropriateness of the steps taken to draw up the opinion, the time essential for it, and the rate of remuneration adopted by the expert.
In determining the amount of the expert's remuneration, it is not the amount of time actually utilized by the expert, but the amount of time essential for the appropriate preparation of the opinion by the expert with the essential information in the field (yes: judgement of the Court of Appeal in Krakow of 17 December 2015, Ref. Act I AC 2320/15).
As regards the amount of the hourly rate, pursuant to paragraph 2 of the Regulation of the Minister of Justice of 24 April 2013 on the determination of the rates of remuneration of experts, flat-rate tariffs and the method of documenting the expenditure essential to issue an opinion in civilian proceedings, the rate of remuneration of experts appointed by the court for each working hr commenced is between 1,28% and 1,81% of the basic amount for persons occupying managerial state positions, which is determined by the budget law.
To challenge the expert's remuneration on the basis of claims that the expert's working hours were in excess
According to the judicature, the court may examine the number of hours required for the preparation of the opinion (dedicated to preparatory and investigation activities, including the examination of the case files and the preparation of an opinion together with the justification) and reduce the remuneration calculated by the expert according to the amount of time and the expert's work.
However, the amount of time to be spent on a peculiar activity depends on a number of factors, including the individual characteristics of the contractor and the individual characteristics of the activity, so the time given in the account for the performance of the activity can, by nature, only be checked roughly.
Thus, if there are no mostly applicable standards for the time of performance of a given activity, to challenge an expert's account on the grounds that the activity required little time than shown in the account, it can only be effective if the amount of spent time reported in the account is so brightly exaggerated that, based on a specified life experience, it can be immediately concluded that the expert undoubtedly utilized up much little time than he states in the account (yes: the ultimate Court ruling of 18 August 1959, I CZ 82/59, OSNCK 1961, No 2, item 41).
