In court cases brought against the government, the legal principle of listening to both sides of the argument is frequently violated. The court usually follows the advice of the experts whom it has appointed. However, when reporting to the court the experts often do not allow the parties to inspect the sources they have used and the parties do not have the opportunity to submit a rejoinder. These are the findings of a legal team at the University of Groningen in a project funded by NWO's Social Science Research Council.
The decision of a court to appoint an expert - for example a physician or someone on the staff of the child welfare authority - has a major influence on the way the case turns out. If the court appoints an independent expert witness, the chance of winning a case against the government is about 50%. If the court does not appoint an expert witness, the government generally wins. In such cases, the court in principle accepts the government's defence against the citizen's appeal.
Despite the fact that the appointment of an expert witness has such a decisive effect on the outcome of court cases, there are hardly any rules as to when such experts should be appointed. In practice, the decision is often not taken by the judge himself but by his assistants. The Groningen team say that in order to protect the principle of hearing both sides, new rules of procedure need to be introduced. The parties involved should, for example, be involved in appointing an expert and the expert would also be required to allow them to inspect the documents forming the basis for his conclusion. The expert would also be required to permit the parties to attend his investigations. If the expert needs to examine information which is bound by professional confidentiality, for example personal medical details, the parties should receive a copy of the draft version of the report first. Any comments they might have would then have to be included in the definitive version presented to the court.
In total 84 dossiers were analysed dealing with cases of work disability, environmental permits, zoning plans and child protection. Furthermore, eight judges were interviewed . The Groningen team found that in actual legal practice, little thought has been given to the best way to incorporate expert opinions in court cases.
Further information:
Dr. Boukje van den Berg (Caron & Stevens/Baker & McKenzie)
T +31 20 551 7987, F +31 20 626 7949
E-mail boukje.vandenberg@bakernet.com