In various types of civil proceedings, it is almost a daily occurrence for the court to admit evidence in the form of an expert opinion, particularly when resolving the case requires specialized knowledge. As provided in Article 278 § 1 of the Polish Code of Civil Procedure, in cases requiring special expertise, the court, after hearing the parties’ positions on the number and selection of experts, may appoint one or more experts to obtain an opinion.
It is obvious that an expert, when performing their duties, should guarantee independence and objectivity. However, if there are grounds to question whether the expert possesses these or other required qualities, it is possible to file a motion for their exclusion.
According to Article 281 § 1 of the Code of Civil Procedure, an expert is excluded from participating in a given proceeding by operation of law in the same situations as a judge. Under Article 48 § 1 of the Code of Civil Procedure, a judge—and, by analogy, an expert—is excluded from the case if:
- they are a party to the case or the ruling directly affects their rights or obligations,
- a party to the case is one of the close persons listed in the provision,
- they were or are a legal representative of one of the parties in the case,
- they participated in adjudicating the case in a lower instance,
- the case concerns a document they have drawn up.
Therefore, if there is a justified doubt as to the impartiality of the expert, they should be excluded from participating in the case and from issuing an opinion that may affect the judgment. Any circumstance that may reasonably raise such doubt—even solely in the mind of the party filing the request for exclusion—is sufficient (Court of Appeal in Gdańsk, judgment of 11 February 2021, V AGa 49/20, Legalis).
When filing a motion to exclude an expert after they have begun their duties, the party must, under Article 281 § 1 of the Code of Civil Procedure, demonstrate that the reason for exclusion arose later or was previously unknown to them.
An opinion issued by an expert who is later excluded from the proceedings should be treated as void, similar to evidence obtained in proceedings that have been annulled. As a result, such an opinion cannot serve as evidence in the case (Supreme Court judgment of 27 May 1976, I PR 64/76, Legalis).