Can I oppose the appointment of a court expert?
These days, it sometimes seems as if no construction and/or renovation project ever goes off smoothly and construction dispute proceedings are gaining popularity.
In these cases, a court expert is very often appointed under Article 19 paragraph 3 of the Judicial Code as a measure before justice is done. The court expert is appointed by the court to make an objective and knowledgeable report of the situation on site.
The task of the court expert is to inform the judge about certain technical, non-legal, aspects. In all kinds of matters, a court expert can be appointed by the court. For instance, the report may concern water infiltrations, (in)stability of the building, but also valuations of works of art or accounting matters.
In many cases, this involves a considerable cost and can also delay the entire case. This depends mainly on the matter and the complexity of the problem.
The question you may then ask is: ‘Can I oppose the appointment of a court expert?’.
Can I appeal the judgement appointing a court expert?
If you disagree with the court's judgment, you can always file a legal action in most cases. Appeal is perhaps the most well-known legal tool.
The timing within which an appeal can be filed depends on the type of judgment the judge has rendered. You will therefore need to check whether the judgment relates only to:
- a measure before justice is done (such as, for example, the appointment of a court expert);
- an agreement reached between the parties;
- or whether the judgment also settles other elements.
Legal doctrine and case law are quite clear:
If a judgment only concerns the approval of an agreement between the parties, you cannot appeal, unless the agreement was not legally concluded. In this regard, we refer to article 1043 of the Judicial Code.
"The parties may request the court to take note of the agreement which they have concluded for the resolution of the dispute regularly brought before it.
No appeal shall lie to the litigating parties against this judgment, unless the agreement was not legally concluded and subject to the modes of interpretation and correction provided for in Articles 793 to 1 801/1, if there are grounds for doing so."
In other words, in principle, judgments of agreement cannot be appealed.
However, if a judgment only relates to a measure before doing justice, you can only lodge an appeal together with the final judgment. For this, reference should be made to article 1050 of the Judicial Code.
"In all cases, an appeal may be lodged as soon as the judgment is rendered, even if it is a judgment by default.
A decision on jurisdiction or, unless the court of its own motion or at the request of one of the parties determines otherwise, a decision before doing justice may be appealed only together with the appeal against the final judgment."
This means that you can only appeal towards the end of the proceedings, i.e. when the final judgment is obtained, and state why the decision on the measure before justice was unfounded.
If a judgment relates to the homologation of a partial agreement between the parties, the appointment of a court expert and other points on which there is no agreement between the parties, the judgment is not limited to the aforementioned categories.
Such a judgment is also known as a mixed judgment. This is judgment that consists partly of decisions on measures before doing justice and partly of final decisions. The latter are the decisions on which the court has formed an opinion without the parties having reached a joint agreement with it.
This type of judgment, i.e. a mixed judgment, can already be appealed. For this, you do not necessarily have to wait until the proceedings come to an end.
In other words, in the case of a mixed judgment, the appeal procedure can be started earlier.
When can I appeal the judgement appointing a court expert?
The usual appeal period is one month from notification. In certain exceptional cases, this period can be extended.
In the case of a settlement judgement, there is no time limit as in principle there is no possibility of appeal, except in the case of non-legal conclusion of the agreement.
If a judgment only relates to a measure before justice is done, you will have to wait for the full proceedings. Only at the final judgment will you be able to file an appeal, regardless of whether the judgment has already been served and the appeal period has already expired.
In the context of a mixed verdict, you can immediately proceed to start appeal proceedings. Especially in case of being served, the appeal should take place within the month. If the appeal is not filed within the month, the appeal will be considered late and your appeal will be dismissed as inadmissible. So being timely is the message!
Contact Wanted Law
Are you troubled by such a situation or considering initiating proceedings? Feel free to contact one of our Wanted Lawyers so that we can advise and assist you personally.