Swiss civil procedure law has undergone a significant change with the introduction of art. 177 of the new Swiss Civil Procedure Code (CPC). Until now, only court expert opinions – i.e., expert opinions commissioned by the court and prepared by an independent expert person – were considered admissible evidence. However, according to the established case law of the Swiss Federal Supreme Court, party expert opinions – i.e., expert opinions commissioned by one of the parties – were not suitable as evidence and neither qualified as expert opinions ("Gutachten") within the meaning of art. 183 et seq. CPC nor as physical records ("Urkunden") in the sense of arts. 177et seqq. CPC. Rather, party expert opinions have so far been mere party allegations, which at best had a certain evidentiary value together with proven circumstantial evidence. With the revision of the CPC, which comes into force on 1 January 2025, the evidentiary value of party expert opinions will change. The new art. 177 nCPC stipulates that, in the future, they will have the status of a document ("Urkunde") and thus constitute admissible evidence within the meaning of art. 168 para. 1 lit. b CPC.
This change is to be welcomed, especially since the statutory provision for the taking of evidence by the court as a precaution ("vorsorgliche Beweisführung") – i.e., the possibility of obtaining a court expert opinion as a precaution to preserve evidence or assess the chances of success in litigation, even against the will of the opposing party – has in many cases proven to be impractical in practice, among other things due to the excessive length of proceedings and costs. For example, in the case of construction defects which need to be remedied quickly and can afterwards no longer be verified, the party-appointed expert opinion will become even more important under the new law.
The significance of this change
1. Mandatory assessment by the court
Previously, private expert opinions had, at best, represented a particularly well-substantiated party allegations, which could, however, be countered with an (equally) well-founded denial. However, the private expert opinion was unable to provide any evidence. If the private expert opinion now has the quality of evidence, the court is obliged to consider it in the context of the free assessment of evidence (art. 157 CPC). The court will have to assess the evidentiary value to be ascribed to a private expert opinion in each specific case on the basis of the individual circumstances. The expert's professional competence and reputation, the degree of his independence, as well as other factors will have an impact on this assessment.
2. Summary Proceedings
In summary proceedings, physical records remain the only admissible form of evidence. By contrast, the preparation of an expert opinion by a court-commissioned expert cannot be demanded. Because private expert opinions now constitute physical records, they qualify as admissible evidence even in summary proceedings, which opens up additional possibilities for the parties.
Relevance for pending proceedings
Finally, it is noteworthy that, according to art. 407f nCPC, the new regulation regarding private expert opinions also applies to proceedings that are already pending at the time the revision comes into force. If the civil proceedings have not yet been concluded by 1 January 2025, a private expert opinion that has already been submitted must henceforth be treated by the court as evidence within the meaning of art. 168 CPC and no longer as a mere party allegations.
Conclusion
The recognition of private expert opinions as physical records and therefore as evidence is to be welcomed. In future, the court will not be able to simply dismiss such private expert opinions as party allegations, but will have to deal with them in depth as part of its free assessment of evidence. Nevertheless, private expert opinions should not be accorded the same evidentiary value as court expert opinions in future: The expert appointed by the court must continue to be impartial and is subject to the threat of punishment under art. 307 of the Swiss Criminal Code, according to which he is obliged to tell the – in contrast to the private expert, who is not subject to these obligations. This will still have to be taken into account in individual cases when assessing the evidentiary value of private expert opinions.
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