Court expert: Law 42/2015, of October 5, reforming Law 1/2000, of January 7, on Civil Procedure.

On October 6, it was published in the BOE number 239, pages 90240 to 90288 (Reference: BOE-A-2015-10727) the Law 42/2015, of October 5, reforming Law 1/2000, of January 7, on Civil Procedure, which reforms the different procedural actions in a new attempt to regulate and promote the use of new communication technologies between the Administration of Justice and its relationship with professionals (among them the court expert) and citizens; as well as the right of citizens to interact electronically with the Administration of Justice. These changes will mean relegating paper support in search of greater effectiveness and efficiency in the processing of procedures and cost savings for the State and citizens.

In line with this, the implementation of the presentation of documents and writings by electronic means in the Administration of Justice is established. This condition also extends to the processing and presentation of our reports as a judicial expert.

The articles modified in the new law are listed below: Civil Procedure Act which are related to the work of the court expert; crossing out what is not applicable and adding in blue the modified or incorporated text:

Article 26.2.7º) Acceptance of power. Duties of the attorney.

It indicates the possibility that the expert fees may be paid by the attorney in the event that the principal (client) has provided him with the funds necessary for their payment.

Article 336) Contribution with the claim and the response to reports prepared by experts appointed by the parties.

Sections 1 and 4 are amended and a new section 5 is added to article 336:

1. Any opinions available to the litigants, prepared by experts appointed by them, and which they consider necessary or convenient for the defense of their rights, must be submitted with the claim or with the response, If this is to be done in writing, without prejudice to the provisions of Article 337 of this Law.

4. In trials with written response to the claim, the defendant who cannot provide written opinions with thatThe response to the claim must justify the impossibility of requesting and obtaining them within the deadline for responding.

And a new section is added:

5. At the request of a party, the court or tribunal may order that the defendant be allowed to examine, through a lawyer or expert, the things and places whose condition and circumstances are relevant to his defence or to the preparation of the expert reports he intends to submit. Likewise, in the case of claims for personal injury, the court or tribunal may require the plaintiff to allow them to be examined by a physician, in order to prepare an expert report.

Article 338.2) Provision of opinions based on procedural actions subsequent to the claim. Request for intervention of experts in the trial or hearing.

2. The opinions whose need or utility arises from the response to the claim or from what was alleged and sought in the pre-trial hearing shall be provided by the parties, for their transmission to the opposing parties, at least five days prior to the holding of the trial or hearing, in oral trials with written response procedure, the parties informing the Court whether they consider it necessary for the experts who have produced the reports to attend said trial or hearing, stating what is indicated in section 2 of article 337.

In this case, the Court may also decide on the presence of experts at the trial or hearing under the terms set out in section 2 of the previous article.

Article 339) Application for appointment of experts by the court and judicial decision on said application. Appointment of experts by the court, without request from a party.

1. If any of the parties is entitled to free legal assistance, they will not have to submit the expert opinion with the claim or the response, but simply announce it, for the purposes of proceeding with the judicial appointment of an expert, in accordance with the provisions of the Law on Free Legal Assistance.

In the case of oral trials without a written response procedure, the defendant who benefits from free legal aid must request the judicial appointment of an expert at least ten days before the date set for the hearing, so that the appointed expert can issue his report prior to said hearing.

2. The plaintiff or the defendant, even if they are not in the case of the previous section, may also request in their respective initial writings or the defendant with the notice provided for in the second paragraph of the previous section of this article, that the judicial appointment of an expert be carried out, if they consider it convenient or necessary for their interests to issue an expert report. In such case, the Court will proceed with the appointment, Whenever the requested expert opinion is considered pertinent and useful. This opinion will be at the expense of the person who requested it, without prejudice to what may be agreed upon regarding costs.

Unless it refers to allegations or claims not contained in the complaint, it may not be requested after the complaint or the response or once the period specified in sections 1 and 2 of this article has elapsed for expert evidence in oral trials without written response, expert report prepared by a court-appointed expert.

The judicial appointment of an expert must be made within five days from the filing of the response to the claim, regardless of who requested said appointment., or within two days from the submission of the application in the cases contemplated in the second paragraph of section 1 and in section 2 of this provision. When both parties have initially requested it, the Court may, if they agree, appoint a single expert to issue the requested report. In such case, the payment of the expert's fees shall be the responsibility of both litigants in equal parts, without prejudice to what may be agreed on in terms of costs.

The court must appoint an expert within five days of the filing of the response to the claim, regardless of who requested the appointment. When both parties have initially requested it, the court may appoint, if both parties agree, a single expert to issue the requested report. In such case, the payment of the expert's fees shall be the responsibility of both litigants in equal parts, without prejudice to what may be agreed on in terms of costs.

3. In ordinary proceedings, if, as a result of the additional allegations or claims allowed at the hearing, the parties request, as provided for in the fourth section of article 427, the appointment by the court of an expert to issue an opinion, the court will agree to do so, provided that it considers the opinion pertinent and useful., and both parties agree on the object of the expertise and accept the opinion of the expert appointed by the court..

The court may do the same when it is a verbal trial and the parties request in the view appointment of expert, with the requirements of the previous paragraph. In which case it will be interrupted until the opinion is issued.

Article 346 will oblige the various Administrations to coordinate and make telematic communications compatible within their procedures, providing an undoubted saving of time and costs in travel and the number of copies of the requested opinions that the judicial expert was obliged to provide in the cases.

Article 346) Issuance and ratification of the opinion by the expert appointed by the court.

The expert appointed by the court will issue his opinion in writing, which he will send by electronic means to the court within the period specified. The court clerk shall forward this opinion to the parties in case they consider it necessary for the expert to attend the trial or hearing in order to provide any necessary clarifications or explanations. The court may in any case decide, by means of an order, that it considers it necessary for the expert to be present at the trial or hearing in order to better understand and assess the opinion issued.

There are still some technical aspects pending regarding what data (information) can be provided and how to access the common procedural systems with functions of registration, identification, authentication, communication or certified delivery. It would be desirable to have an adequate standardisation of the use of the current electronic signature that would not involve duplication with the use of a new electronic judicial certificate under the pretext of guaranteeing the integrity, immutability and authenticity of expert reports. In this electronic access operation, the Professional Associations will play an important role that must be developed through each of the professional one-stop shops of each association:

First additional provision. Use of telematic means.

3. …

For these purposes, the General Council or the corresponding superior will make available to the judicial offices and the Administrations with competence in matters of Administration of Justice the protocols and interconnection systems that allow the necessary access by electronic means to the registry of practicing registered professionals provided for in article 10 of Law 10/1974, of February 13, on Professional Associations, guaranteeing that their professional data, such as membership number, professional address, telephone number, fax number, email address and any other data that allows the unique identification of the member, are included therein.

In these cases, the judicial bodies will send the acts of communication through the professional association located in the territorial area in which the notifying body or office is located.