Problem description: The inactive expert

Expert opinions are of considerable practical importance in the context of legal disputes. Particularly in liability law disputes, the question of the justification of a claim regularly depends on questions that the court called upon to decide cannot answer itself due to a lack of sufficient expertise. The court then inevitably appoints a (supposedly) suitable expert.

In this way, an expert regularly becomes the focus of civil proceedings, which often involve claims in the millions.

In view of the considerable importance of experts in civil proceedings, it is surprising that the Code of Civil Procedure offers little recourse if – as is often the case – the expert does not or only insufficiently fulfill his duties to prepare the commissioned expert report. In particular, a defaulting or even inactive expert effectively means that the civil proceedings in question come to a standstill and therefore represents a major nuisance for the parties concerned.

The legislator has recognized weaknesses in the legal framework and has introduced some notable tightening as part of a reform of expert witness law (Act of 11.10.2016, Federal Law Gazette I p. 2222) with effect from 15.10.2016. In the author’s initial experience, there has so far been a lack of consistent application of these stricter regulations by the courts.

Legal situation: The inactive expert witness in civil proceedings

The legal situation since 15.10.2016 is as follows:

Overview: Expert witness law of the ZPO

If an expert fails to prepare the commissioned expert opinion within a reasonable period of time, the question arises as to what legal basis exists for responding to this.

The relevant regulations in the Code of Civil Procedure (ZPO) are as follows:

The starting point is § 407 ZPO:

Ҥ SECTION 407 ZPO
Obligation to provide the expert opinion

(1) The person appointed as an expert shall comply with the appointment if he is publicly appointed to provide expert opinions of the required type or if he publicly practices the science, art or trade, knowledge of which is a prerequisite for the expert opinion, or if he is publicly appointed or authorized to practice the same.

(2) The person who has declared his willingness to do so in court shall also be obliged to provide the expert opinion.”

Accordingly, once appointed, the expert is legally obliged to prepare the expert opinion. According to Section 408 ZPO, reasons for refusing the expert opinion are limited to those that would also entitle a witness to refuse to testify. This constellation can be disregarded in the present case.

The consequences of failure to provide an expert opinion are set out in sections 409, 411 (para. 1 and 2) ZPO:

409 ZPO
Consequences of failure or refusal to provide an expert opinion

(1) 1If an expert does not appear or refuses to provide an expert opinion although he is obliged to do so, or if he withholds files or other documents, the costs incurred as a result shall be imposed on him. 2A fine shall also be imposed on him. 3In the event of repeated disobedience, the fine may be imposed once again.

(2) An immediate appeal shall be lodged against the decision.

The aforementioned standard deals with the case where the expert indicates that he does not wish to provide the expert opinion despite having accepted the obligation to do so. The mandatory legal consequence is consequently the imposition of a fine and the imposition of the costs resulting from the refusal

Of greater practical importance is § 411 ZPO, which regulates the procedure when a written expert opinion is commissioned – which is the rule:

411 ZPO
Written expert opinion

(1) If a written expert opinion is ordered, the court shall set a deadline for the expert to submit the signed expert opinion.

(2) 1If an expert who is obliged to provide an expert opinion fails to meet the deadline, a fine shall be imposed on him. 2The fine must be threatened in advance with the setting of a grace period. 3In the event of repeated failure to meet the deadline, the fine may be imposed again in the same manner. 4The individual fine may not exceed EUR 3,000. 5§ 409 Para. 2 applies accordingly.

The most important finding of this standard, which has been tightened as part of the reform of expert witness law with effect from October 15, 2016, is that the court must set a deadline for the expert witness to prepare the expert opinion from the outset (previously: “should”).

If the “person refusing to provide an expert opinion” fails to meet this mandatory deadline, a fine of up to EUR 3,000 “shall” be imposed. However, this only applies after he has first been threatened with the imposition of such a fine. In the event of another default, a fine can be imposed again – once (!).

The possibility of withdrawing or at least reducing the expert’s claim to remuneration is probably of the greatest relevance. This follows from § 8a of the Judicial Remuneration and Compensation Act(JVEG):

Ҥ 8a JVEG
Cessation or limitation of the right to remuneration

(1) The entitlement to remuneration shall lapse if the authorized party fails to notify the consulting body without delay of such circumstances that justify its rejection by a party, unless it is not responsible for the omission.

(2) The beneficiary shall only receive remuneration to the extent that his performance can be utilized as intended if he

1. has breached the obligation under section 407a (1) to (4) sentence 1 of the Code of Civil Procedure, unless he is not responsible for the breach;

2.has provided a defective service;

3. in the course of providing the service, has created reasons through gross negligence or willful misconduct which entitle a party to object on grounds of suspected partiality; or

4. has not completed his or her performance despite the imposition of a further fine.

Insofar as the court takes the performance into account, it is deemed to be usable.”

Accordingly, the expert’s remuneration can be withdrawn or at least reduced if he breaches the duties incumbent upon him. In the present context § Section 8a (2) no. 4 JVEG of particular importance:

This is because, in the event that a fine is imposed twice without result in accordance with Section 411 (2) ZPO, it follows that the expert’s remuneration can be withdrawn in this case. Further details on this regulation can be found in the underlying explanatory memorandum to the law (BT -Drucksache 17/11471; p. 259):

“Only in the event that the remedies described by law (administrative fine for failure to meet a deadline and for repeated failure to meet a deadline) remain unsuccessful should the claim to remuneration be reduced in accordance with the proposed number 4. In this context, a reduction seems preferable because in the case of partial services rendered on time and usable, complete elimination seems inappropriate. For the other cases in paragraph 2, too, the remuneration should not generally be completely waived, but (only) granted for the usable services. However, if usable services or parts of services are not determined, the entitlement to remuneration shall lapse completely.”

It can be stated that in the event of a failure to produce usable results, the claim to remuneration must be denied in full despite the double fine imposed.

Interim conclusion on the expert witness law of the ZPO

The existing regulations on the practically very important problem of inactive experts are surprisingly sparse. It is pleasing that the reform of the law on expert witnesses with effect from 15.10.2016 has introduced a sanction mechanism to be initiated as soon as the expert opinion is commissioned:

If an expert refuses to act despite being fined twice within the meaning of Section 4011 (2) of the German Code of Civil Procedure (ZPO), he is threatened with the complete loss of his remuneration if there is no usable result at the time of the fruitless expiry of the last deadline.

The inactive expert: Interesting case law

As outlined above, the legal situation regarding the inactive expert is extremely thin and incomplete. This makes the case law all the more important, from which the following (excerpts) can be taken.

OLG Stuttgart, decision of 2.5.2019 (8 W 103/19): Expert opinion assignment means “sovereign claim”

With regard to the legal status of the court-appointed expert, the Higher Regional Court of Stuttgart rightly pointed out in a recent decision that the expert holds a sovereign position:

“The appointment of an expert by the court is a state sovereign claim that is not subject to the rules of contract law (OVG Berlin, JurBüro 2001, 485; Hartmann, Kostengesetze, 48th edition, § 1 JVEG, para. 11).”

On the one hand, this finding by the Higher Regional Court of Stuttgart demonstrates the special duties of the expert. However, the flip side of this is the extremely weak legal position of the parties, who are dependent on the expert opinion. In particular, the expert opinion mandate does not have any protective effects in favor of the parties. It is therefore very difficult to establish a legal basis for a party’s claims (for damages) against the expert due to a delay in preparing the expert opinion. In the event of a grossly negligent incorrect expert opinion, the special provision of Section 839a BGB applies.

OLG Frankfurt, decision of June 9, 2011 (1 W 30/11): Admissibility of a complaint for failure to act if court/expert remains inactive for too long – so-called “do-what-complaint”

The Higher Regional Court of Frankfurt, among others, has correctly declared the possibility of a so-called complaint of failure to act to be admissible if an expert opinion is delayed for an unreasonably long period of time.the Higher Regional Court of Frankfurt (decision of June 9, 2011, case no. 1 W 30/11) stated in its first guiding principle:

“A complaint of failure to act is exceptionally admissible for constitutional reasons if the court of origin does not act or does not act with the required acceleration (so-called “do-what complaint”).

The point of contact here is not the expert, but the court, which fails to take appropriate action to persuade the expert to take action.

BGH, decision of July 27, 2006 (VII ZB 16/06): Proclamation of dispute against expert abusive and therefore inadmissible.

Irrespective of the fact that liability of the expert due to damages resulting from his inactivity is (probably) out of the question anyway, the BGH already clarified in 2006 that a third-party notice against an expert in the same proceedings is inadmissible. The corresponding guiding principle states (see decision of July 27, 2006, case no. VII ZB 16/06):

“The notice of dispute against a court expert in order to prepare liability claims against him for allegedly incorrect expert services provided in the same legal dispute is inadmissible.”

The background to the decision is cases in which, from the perspective of one party, it becomes apparent that an expert is (grossly) negligently preparing an incorrect expert opinion to the detriment of this party. In such cases, the expert may be liable in accordance with Section 839a BGB. According to the BGH, a third-party notice cannot be used to prepare a liability claim against the expert.