The Expert’s Remuneration In Civil Proceedings

Summary

The expert in civil proceedings is not merely an assistant to the court, but the bearer of specialized knowledge that contributes to a sound judicial assessment. The recognition of the expert’s right to reasonable remuneration and reimbursement of expenses constitutes a fundamental principle, which is, however, accompanied by critical questions: Who is liable for payment, and how is the collection of the claim secured? In this article, we examine the legal framework and the current trends in legal theory and case law regarding the crucial issue of experts’ remuneration.

Introduction

The expert in civil proceedings is an assistant to the court, appointed at the court’s discretion. His or her role is crucial: to provide the judicial process with the specialized scientific knowledge that the judge, as a legal professional, does not possess. In this way, expert evidence operates as a bridge between law and science, contributing substantially to the proper and effective administration of justice.

This contribution, however, cannot be regarded as an unpaid service. The preparation of an expert report requires time, specialized knowledge and, often, significant expenses. Accordingly, the appointed expert is entitled to reasonable remuneration for the services provided and to compensation for the expenses incurred in the performance of his or her duties.

Given, therefore, that the preparation of an expert report is a demanding and often time-consuming process, it is necessary to examine the practical aspects of the expert’s remuneration, which this article seeks to highlight: who is under the obligation to pay it, how the “reasonable remuneration” to which the expert is entitled is determined, and what legal remedies are available to the expert in the event of non-payment.

Legal Framework and Party Liable for Payment

The expert’s right to remuneration is expressly provided for under Greek law. It follows from a combined reading of Articles 173 para. 3, 189 para. 1(d) and 614 para. 5(c) of the Greek Code of Civil Procedure that the expert is entitled to remuneration for the work performed, as well as to compensation for the expenses incurred in the performance of his or her duties. This provision reflects a fundamental principle: expert evidence constitutes specialized scientific work and not merely procedural assistance to the court. Accordingly, its provision cannot be treated as an unpaid service to the administration of justice.

Despite the clear recognition of the right to remuneration, the issue of the person liable for its payment has, in the past, been the subject of considerable debate in legal theory and case law. The difficulty stems from the particular institutional status of the expert: on the one hand, the expert is appointed by the court and acts as its assistant; on the other hand, the expert report forms part of the evidentiary material relied upon and used by the parties.

Various views have been expressed in legal theory as to who is liable to pay the remuneration for expert evidence ordered by the court. According to a first approach — which treats the expert as a public official and his or her relationship with the proceedings as one governed by public law — the question of who must pay the remuneration does not depend on who requested the expert report, but on who bears the objective burden of proof. Under this approach, the advance payment of the expert’s remuneration constitutes a procedural “burden” on the party: if payment is not made, the taking of evidence does not proceed. In such a case, it has also been argued that the expert cannot compel the parties to make payment and, therefore, retains a direct claim against the State that appointed him or her.

According to another view, the expert is entitled to claim remuneration from the party who took the initiative and arranged for the expert evidence to be carried out, namely the party pursuing the procedure. This applies even if that party did not bear the burden of proof, or if the expert was appointed following a request by the opposing party or by the court of its own motion. On this view, the party who lost the case and was ordered to pay the legal costs is not liable for the expert’s remuneration, unless that party was the one who initiated the procedure for the taking of expert evidence.

The third approach places the expert’s remuneration within the framework of legal costs, considering that the final financial burden should be borne by the unsuccessful party, in accordance with the general rules on costs.

According to the view prevailing in legal theory and case law, the party liable for the payment of the experts’ remuneration is the party who arranges for the expert evidence to be carried out, pursuant to Article 173 para. 3 of the Greek Code of Civil Procedure. This is the party who takes the initiative to notify the experts of their appointment and invites them to take the oath, pursuant to Article 385 of the Greek Code of Civil Procedure, and to perform their duties. This obligation of the party pursuing the procedure remains in force regardless of whether, in the meantime, a final judgment has been issued ordering another party to bear the costs. Furthermore, that party’s liability is not affected by whether the expert evidence was ordered following his or her own request, following a request by all parties, by the court of its own motion, or even where there was a prior agreement between the parties as to who would ultimately bear the costs.

Determination of Reasonable Remuneration

Equally important is the issue of determining reasonable remuneration. This includes both the expert’s “net” remuneration for the services provided and the expenses incurred in the course of carrying out the expert examination, such as travel, accommodation, laboratory tests, materials, photographs or plans, any auxiliary staff, and similar costs.

The law does not specify a fixed amount, but leaves the amount of remuneration to the discretion of the court. In exercising that discretion, the court takes into account the nature and complexity of the expert examination, the time required for its completion, the level of the expert’s scientific specialization, and the actual expenses incurred.

It should be emphasized that experts are not required to wait for the issuance of a court judgment — let alone a final judgment — in order to be paid for their services. Were this the case, they would most likely refrain from undertaking such duties, since the usual delay in the completion of court proceedings would result in a prolonged and uncertain wait for payment of their remuneration. On the contrary, experts are entitled to receive their remuneration in advance and, in any event, after the expert examination has been carried out, namely after the filing of their written opinion with the court registry.

Finally, in the event of non-payment of the remuneration, the expert may also pursue the relevant claim judicially. This claim is time-barred five years after the end of the year in which it arose. In this way, the legislator ensures that expert evidence, as an institution serving the administration of justice, is not weakened by uncertainty regarding the remuneration of the experts who perform it.

Instead of a Conclusion

Expert evidence constitutes a crucial tool for the administration of justice in cases requiring specialized scientific knowledge. The expert does not replace the judge, but complements the judge’s work by providing the technical or scientific basis on which the judicial assessment will rely.

For precisely this reason, the expert’s remuneration cannot be treated as a secondary procedural issue. A clear understanding of the rules governing its determination and payment is a necessary prerequisite for experts themselves, as well as for the parties and their legal representatives.

Ultimately, the proper regulation and application of the relevant provisions protects not only the expert’s right to remuneration. More importantly, it ensures that expert evidence will continue to fulfil its institutional role: to serve as the necessary point of convergence between law and science, for the benefit of the proper administration of justice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.