Security of evidence from the expert’s opinion (audit) before legal proceedings are initiated

Security of evidence from expert opinion may be applied before legal proceedings are initiated, which is simply a large advantage of this small known legal mechanism. It is not a secret that court proceedings involving property rights may take up to a fewer years at first instance. In practice, it may so appear that, at any phase in the conduct of the proceedings due to the passage of time or human activity, certain circumstances applicable to the resolution of the dispute cannot be examined by the court.

These circumstances may frequently be fundamental to the subject substance of the dispute, and their judgement by the court may find the content of the judgment. Article 310 of the Code of civilian Procedure provides for the anticipation of preventing these situations by introducing an institution "proof securityIt’s okay. ” According to that provision, may safe the evidence, where there is simply a concern that it will become impracticable or besides difficult, or where for another reasons there is simply a request to establish an existing state of affairs. Security of proof may be made on Application for proof security, and in the course of the procedure, i.e. after the application Complaint, besides from office to court.

The mechanics described in this Article proof security is so intended to preserve evidence yet before proceedingcourt (or little frequently, in the course of proceedings) in specified a condition that it can be carried out by the court in the course of the trial. Article 310 of the Code of civilian Procedure allows the safety of all means of proof. However, the most frequently secured evidence is:

1. evidence from witness statementswho, for example, are not permanently in Poland or whose wellness condition indicates that it may not be possible to interview them in the future, and
2. evidence from expert opinionsthe focus of this Article.

Security of evidence from the expert’s opinion before civilian proceedings are initiated

Security of proof— in accordance with Article 310 kpc, proof safety may happen if the evidence is impracticable or besides hard to carry out at the appropriate phase of the process, or if, for another reasons, there is simply a request to establish the existing situation. What situations can so be covered by the provision in the context of security of evidence from expert opinion? In the doctrine, it is pointed out that with respect to property proceedings, security of evidence from expert opinion in accordance with Article 310 of the Code of civilian Procedure, it may take place against ‘a building in danger of collapse or another unstable construction‘and the conduct of the safety of proof procedure is ‘urgent action” — Dolecki Henry (ed.), Wiśniewski Tadeusz (ed.), Code of civilian Procedure. Comment. Tom I. Articles 1-366, II).

Another example may be that an investor has carried out construction work on a lease that has been made in a defective manner, so that the customers of the premises cannot safely usage it. It is so evident that the investor is obliged to carry out further construction work in the premises in a correct manner as shortly as possible to destruct the negative consequences on the wellness or life of the local customers. In this situation, it seems that proof safety proceedingswill be a substance of urgency and the lodging of a safety application may so be justified.

Safeguarding evidence from expert opinion and assessing the chances of success

However, attention should be paid to the widely accepted position of the courts and the legal doctrine that proof security cannot service as a reason for the future to make certain of the chances of winning the trial. Security of proof cannot so be utilized by the plaintiff organization to verify the chances of winning the trial before filing a lawsuit. It is easy to imagine a situation where the reason for ordering the construction work and then not knowing that the construction work has been done correctly, application for safety of evidence from an expert examination in the field of construction to identify possible property defects and the costs of removing them. Consequently, the plaintiff may effort to ‘sap’ whether defects could justify his claim for damages and the amount of the claim. In this situation, if there were no ‘necessary activities’, it appears that there shall be no obstacle to the conduct of the requested evidence at the phase of the legal proceedings, not before the trial is initiated. The court's consideration of the application would most likely lead to certainty of the chances of winning a possible future trialwhich, in the light of the wording of Article 310 of the Code of civilian Procedure, is inadmissible.

This position has been confirmed in many court rulings. For example, in the judgement of the Court of Appeal in Szczecin, 1st civilian Division, dated 11 December 2018, the mention to Act I AG 178/18, the court ruled that ‘It is so essential to divide the view expressed by the territory Court of Szczecin-Leather and West in Szczecin that this conclusion [application for proof safety from expert opinion under Article 310 of the Code of civilian Procedure — footnote Mateusz Radomyski] went beyond the institution provided for in the provision. The plaintiff, awaiting the determination of the facts which were the subject of her procedural duty, clearly sought to get information on the degree and value of her claims..’

Security of evidence from expert opinion or safety of evidence from expert review?

In view of the considerations described in the preceding point, it appears that in the context of disputes concerning construction matters, the court should so safeguard only evidence from the examination of the property as an component in the dispute. The expert’s task will so only be to establish the existing facts alternatively than to make an assessment utilizing peculiar messages prior to the trial.

The intent of the evidence from the expert's opinion is to supply the court with an opinion in cases requiring peculiar information, while the facts are verified by examination. Audit of the property by a judicial expert are classified in the category of cognition measures which do not supply fresh procedural material but constitute evidence check file, as expressed in the examination of the examination (J.J. Litauer, Evidence of Review according to the civilian Procedure Code, PPC 1937, No 22-23, p. 674). A study shall be drawn up, which shall include a description of the subject substance of the examination, a complex explanation of the parties, and, where necessary, a plan or a summary of the situation and the conduct of additional operations. (e.g. interrogation of witnesses and parties). The examination (also referred to as ‘local vision’, ‘evidence’, ‘the committee’) is so evidence of the examination of the property, inter alia, by straight observing the subject substance of the evidence and by establishing the location, method position of the property or its individual components. The visual inspection shall be accurately documented either in writing or in the form of a recording utilizing an image and sound recording apparatus. Application for proof securitywith a viewshould so be limited only to carrying out and documenting in writing and by means of photographs of the detailed examination of the position of the property, enabling the issuing of a possible opinion in the course of the subsequent investigation.. In the event of a request for proof to be secured in order to identify the defects of the property and the costs of its removal, it should be borne in head that specified evidence cannot be ‘replaced’ by an expert, which would so let the anticipation of the future process being identified at the phase of proof security.

Example: in an opinion issued pursuant to Article 310 of the Code of civilian Procedure, the expert stated that: ‘The execution of construction works does not comply with the provisions of Articles 5 and 7 of the Act Construction law in a way that ensures appropriate use. The installation works were not carried out in accordance with the method conditions of execution and reception."

In the above example, it can so be argued that the expert did not simply observe the subject substance of the evidence and draw up a protocol documenting the observation, but carried out an assessment and submitted conclusions on the compliance of the installation with the construction law. The opinion so satisfies the conditions of the expert’s opinion and not the evidence of the examination. According to the ultimate Court case-law: “Evidence from the expert is intended only to supply the court with opinions in cases requiring peculiar news. On the another hand, the uncovering of the existing facts is made by an examination carried out by the court, where essential involving experts (Article 303 of the Code), and as far as the facts are concerned, it is determined by witness testimony. (The ultimate Court ruling of 6 May 1957, No. III CR 38/57, OSNCK 1958, No. 2, item 47). Consequently, the admission of specified evidence by the court in a safeguard procedure would most likely infringe Article 310 of the civilian Procedure Code.

Capital Legal Comment

In the case of disputes involving immovable property, due to the long-term nature of the litigation, securing evidence from the expert’s opinion (view) may be a mechanics that removes the negative effects of failure of evidence in the future. However, it is crucial to usage the mechanics security of evidence from expert opinion was not utilized by the plaintiff to measure the merits of the claim before filing a lawsuit. It is besides crucial that the evidence is carried out in specified a way that the expert finds only the existing facts and does not measure it with peculiar messages.. It is besides worth noting that the securing of evidence from the expert's opinion may be beneficial for both the plaintiff and the defendant. Thus, erstwhile it is foreseen that a case may be settled in a court of law, it is appropriate to mention to a lawyer who will give an opinion on whether the safety of proof under Article 310 of the civilian Procedure Code will be admissible and, if so, what evidence should be secured and how.

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If, after reading this article, you feel that in your case, securing evidence from an expert opinion can be an appropriate solution, please contact our Chancellery. We will measure your legal problem and we will aid you work out the best solution.