Differences between evidence systems and their impact on litigation strategy

Any experienced lawyer or solicitor knows and understands the importance of evidence to succeed in a court case. However, the approach to evidence and its fundamental requirements in order to be valid and credible fundamentally differs from the Anglo-Saxon system in many jurisdictions in continental Europe. Experience teaches us that these differences are not often well-known and understood and, therefore, may lead to mistakes in strategy at the very start of a case, which cannot be corrected or remedied afterwards during the court proceedings.

Contradictory experts

A typical example of this is so-called contradictory expert proceedings that are used in France, Belgium and Italy, among others. The idea behind such proceedings is that only so-called neutral, independent and impartial experts may, after an important loss (product liability and product recall, a fire or explosion, etc), deliver to the court a report that will have evidential value. These contradictory experts are usually appointed by courts or arbitration panels and sometimes by the parties themselves by way of mutual agreement. The work of so-called unilateral experts, appointed and paid by only one of the parties, will in practice often be ignored by the courts. Usually, contradictory experts are appointed by the courts, often in summary proceedings or even ex parte proceedings, in the days immediately after the occurrence or the discovery of a loss or the filing of a financial claim.

Although unilateral experts at that moment will probably also have been appointed by the parties (especially when insurers are involved), their reports and findings will only be relevant to convince the court of the necessity to appoint a court expert with a particular mission to fulfil. Hence, in systems like the Belgian, French or Italian system, the parties should not view those unilateral expert reports as credible and reliable evidence to prove effective liability and quantum, but rather as a starting point to obtain the appointment of a court expert with a well-defined mission to accomplish. This means that the repair or reconstruction works after a loss will not be able to be started until the court-appointed expert has formally ‘released’ the loss site after their further analysis and findings process is complete. Often one will see, because the system is not well-understood, that important modifications to the loss site are made by one or more parties, rendering further contradictory findings by a court expert technically impossible and depriving that party of the ability to fulfil its burden of proof.

The word ‘contradictory’ in all this is crucial. It means that the court-appointed expert basically cannot do anything without all of the parties being informed, advised, aware of, and participating at the same moment and in the same manner in the process. This ensures not only respect for the rights of defence, but also contributes significantly to the evidence value and credibility of the expert’s report. Respect for the contradictory debate is, for the court, necessary to guarantee that the conclusions reached by the court-appointed expert are credible. This does not prevent that confidential information disclosed in contradictory expert proceedings from being legally protected, either through the signing of an NDA or through a court decision. 

In systems like the French, Belgian or Italian system, the court will heavily rely on the conclusions in the final report by the court-appointed expert. Only very rarely will the court hear from such an expert in the proceedings, as an expert witness. The role of the expert witness, who may be examined and cross-examined by the court and by the parties, is therefore something that is very exceptional in the Belgian, French and Italian system. 

Conclusion

In addition to the absence of any obligation on the parties to try to reach settlement by way of exchanging ‘without prejudice’ proposals before the start of any proceedings, the rules related to contradictory expert proceedings are one of the most fundamental differences between Anglo-Saxon and continental legal systems, which lawyers must be aware of when dealing with liability cases or losses in continental Europe. 

The collection of credible and reliable evidence to a large extent is an area of law that is not harmonised, not even within the EU, which makes it all the more complex and complicated. The Dutch and German systems, for instance, are slightly different, with parties using unilateral experts whose reports to a larger extent have evidence value in later litigation, with the possibility for the court to appoint an own expert with a more limited mission and without being obliged to follow and comply with the contradictory process requirements, which are a fundamental aspect of the French and Belgian system. The same is also equally true for continental lawyers being confronted with a loss or liability case in UK.

At all times, the reflex should be to involve local counsel as a first step to understand how evidence in the first and crucial hours and days of a loss or liability case is to be obtained and collected in order to secure the relevant legal rights and actions in later proceedings, irrespective of whether these later proceedings will be conducted by way of arbitration or litigation.