Rulings on the Appointment of an Expert Examination in Civil Cases as a Subject of Appeal

Abstract

A ruling on the appointment of an expert examination is an independent subject of appeal. However, a cassation appeal cannot be filed separately against such a ruling. The appointment of an expert examination is one of the grounds for issuing a ruling on the suspension of proceedings in a case, which is also an independent subject of appeal. These rulings constitute separate subjects of review, each having its own scope of verification. There are frequent cases of appeals against rulings on the appointment of an expert examination on the grounds that, during the suspension of proceedings, the court collected, attached and provided the expert with new evidence for conducting the examination. The existence of such cases is caused by the courts’ incorrect interpretation of the rules on the suspension of proceedings as a procedural complication within which the appointed expert examination is conducted. To avoid such recurring judicial errors, there is a need to supplement the CPC of Ukraine with provisions stating that an expert’s motion to collect new or additional materials and samples shall be considered by the court after the suspended proceedings have been resumed. A ruling rejecting a party’s request to attach a payment document confirming payment of the cost of the expert examination and to send the case materials for examination is not an independent subject of appeal, including in cases where the party was improperly notified of the need to make such a payment. It has been established that there is no clear regulatory definition of the temporal limits for exercising the right to initiate an expert examination at the request of a party to the case, which has led to divergent judicial practice on this issue. After the opening of proceedings in a case, issues related to the need for an expert examination and the obtaining of a corresponding expert opinion should, in the author’s view, be resolved only by the court. This is due to the importance of determining the need for an expert examination, the type of examination, the formulation of questions to be answered by the expert, the need for a particular number of experts or expert institutions, and the ability to request the necessary materials for the examination. Such skills are available to the court, whereas an average party to the case does not possess the relevant knowledge and skills. The article identifies insufficient regulation of the relationship between the exercise of the right to initiate an expert examination at the request of a party to the case and the appointment of an expert examination by the court, including the court’s obligation to appoint it when the party did not exercise the former right and instead applied to the court with a motion for its appointment. A ruling refusing to appoint an expert examination by the court should be classified as an independent subject of appeal.