The influence of expert opinion on the court's decision

Status of the expert opinion

In accordance with Chapter 7 of the Arbitration Procedure Code of the Russian Federation, an expert opinion is one of the types of evidence.

However, unlike other types of evidence, by virtue of Article 9 of the Federal Law of 31.05.2001 No. 73-FZ "On State Forensic Expert Activities in the Russian Federation", an expert examination is a procedural action consisting of conducting research and giving an expert opinion on issues the resolution of which requires special knowledge in the field of science, technology, art or craft and which are put before the expert by the judge in order to establish the circumstances, subject to proof in a specific case. A similar rule is contained in the Arbitration Procedure Code of the Russian Federation.

As stated in Part 1 of Article 82 of the Arbitration Procedure Code of the Russian Federation, in order to clarify issues arising during the consideration of the case that require special knowledge, the arbitration court appoints an expert examination at the request of the person participating in the case, or with the consent of the persons participating in the case. In the event that the appointment of an expert examination is prescribed by law or provided for by the contract, or is necessary to verify the allegation of falsification of the evidence submitted, or if it is necessary to conduct an additional or repeated examination, the commercial court may appoint an expert examination on its own initiative.

If, during the consideration of the case, questions arise for the clarification of which special knowledge is required, and in accordance with the provisions of the Code, an expert examination cannot be appointed at the initiative of the court, then in the absence of a petition or consent to the appointment of an expert examination on the part of the persons participating in the case, the court shall explain to them the possible consequences of failure to file such a petition (lack of consent).

In the event that such a motion has not been received or consent has not been obtained, the court shall assess the claims and objections of the parties taking into account the provisions of Article 65 of the Arbitration Procedure Code of the Russian Federation on the burden of proof based on the adversarial principle, according to which the risk of consequences of failure to perform the relevant procedural actions shall be borne by the persons participating in the case (Part 2 of Article 9 of the Code).

Thus, within the meaning of Part 1 of Article 82 of the Arbitration Procedure Code of the Russian Federation, the appointment of an expert examination is the right of the court, and not its obligation.

According to Part 2 of Article 82 of the Arbitration Procedure Code of the Russian Federation, the scope and content of the issues on which the examination is carried out are determined by the court.

As stated in paragraph 8 of the Resolution of the Plenum of the Supreme Commercial Court of the Russian Federation dated 04.04.2014 No 23 "On Certain Issues of the Practice of Application of the Legislation on Expert Examination by Commercial Courts", determining the range and content of the issues on which it is necessary to conduct an examination, the court proceeds from the fact that the issues of law and legal consequences of the evaluation of evidence cannot be raised before the expert.

Thus, procedural legislation distinguishes between legal issues, the resolution of which falls within the competence of the court, and questions that are posed to the expert within the framework of his special knowledge and competence, the answers to which must be obtained by the court to establish the circumstances of the case.

Therefore, the purpose of expert research is to extract information about the facts relevant to the case, which are the subject of proof in the case or are important for the verification of other evidence in the case, and the specificity of the expert opinion as evidence in the case is that with its help facts are established that require special knowledge in the field of science, technology, art and other fields, which neither the court, nor the court neither the persons participating in the case have.

At the same time, such special knowledge cannot relate to the clarification of legal issues, but must be aimed exclusively at establishing the fact, taking into account the person's special training and professional experience beyond the generally known knowledge (Resolution of the Presidium of the Intellectual Property Rights Court dated 24.10.2024 No. S01-1579/2024 in the case No SIP-175/2024).

Application of special knowledge

An important point that should be taken into account when appointing an expert examination, based on the above, is the need to apply special knowledge to establish certain facts that are important for the case.

In this case, special knowledge means that the expert candidacy has the appropriate education and work experience.

As a rule, the availability of special knowledge is established by examining the information and documents submitted by such a candidate on the level of education and qualifications (diplomas, certificates), as well as work experience and experience in conducting such examinations.

When entrusting the examination to a specific expert/expert institution, the court proceeds from the presence in the case materials, among other things, of the consent of such a person to conduct the relevant examination.

The most common type of examination, which is carried out in almost all categories of cases, is the examination of a signature – its subject can be both the establishment of the prescription of the person's signature in the relevant document, and the issue of the signature belonging to a specific person – the court cannot answer these questions on its own not only due to the lack of relevant special knowledge, but also in the absence of the necessary equipment at its disposal.

As for cases on the protection of intellectual property, the most common examination in them is an examination, within the framework of which the use/non-use of an intellectual property object in the defendant's objects is established (first of all, we are talking about objects of patent and copyright law).

After receiving a ready-made expert opinion in the case file, it is necessary to make sure that the conclusion is sufficiently clear and complete, that it is justified and that there are no contradictions.

As a rule, the party that does not agree with the expert opinion, in order to substantiate its objections, submits a review of the expert opinion to the case file.

The purpose of reviewers is to search in the expert opinion for errors made by the expert, which led him to incorrect conclusions, or to their incompleteness.

At the same time, it should be borne in mind that reviews are not considered as expert opinions, since the persons who have complied with these conclusions have not been involved in the case as specialists, and the reviews are carried out in the interests and on behalf of the applicants, as well as received by them out of court.

However, as stated in Part 5 of Article 71 of the Arbitration Procedure Code of the Russian Federation, no evidence has a predetermined force for the arbitration court, including the conclusion prepared on the basis of the results of a forensic examination.

In addition, according to the explanations set out in paragraph 55 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 23.04.2019 No 10 "On the Application of Part Four of the Civil Code of the Russian Federation", when considering cases on the protection of infringed intellectual property rights, the courts should take into account that the law does not establish a list of admissible evidence on the basis of which the fact of infringement is established (Article 55 of the Civil Procedure Code of the Russian Federation, Article 64 of the Arbitration Procedure Code of the Russian Federation). Therefore, when resolving the issue of whether such a fact has occurred, the court, by virtue of Articles 55 and 60 of the Civil Procedure Code of the Russian Federation, Articles 64 and 68 of the Arbitration Procedure Code of the Russian Federation, has the right to accept any means of proof provided for by procedural legislation.

In accordance with the legal position set forth in paragraph 13 of Resolution No 23, the expert's opinion on the results of a forensic examination appointed during the consideration of another court case, as well as the expert's opinion obtained on the basis of the results of an out-of-court examination, cannot be recognized as expert opinions on the case under consideration. Such a conclusion may be recognized by the court as another document admissible as evidence in accordance with Article 89 of the Arbitration Procedure Code of the Russian Federation.

Thus, if there is a conclusion in the case obtained based on the results of an out-of-court examination, the court must evaluate both the expert opinion and the out-of-court opinion in accordance with the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation (Ruling of the Supreme Court of the Russian Federation dated 31.01.2017 in case No 305-KG16-15981, A41-47572/2014).

The need to examine such evidence on the merits is also evidenced by the established judicial practice, for example, the Resolution of the Intellectual Property Rights Court dated December 26, 2019 in case No A40-216034/2018, the Resolution of the Intellectual Property Rights Court dated 05.09.2019 in the case No A40-30260/2017, the Resolution of the Presidium of the Intellectual Property Rights Court dated 08.12.2014 in the case No SIP-155/2014, the Resolution of the Intellectual Property Rights Court dated July 24, 2017 in the case No A55-13802/2015.

Court practice

In view of the foregoing, as well as in accordance with paragraph 4 of Article 170 of the Arbitration Procedure Code of the Russian Federation, the reasoning part of the decision must indicate the evidence on which the court's conclusions on the circumstances of the case and the arguments in favor of the decision are based; the reasons for which the court rejected certain evidence, accepted or rejected the arguments of the parties to the case in support of its claims and objections.

Thus, the review can be taken into account and is subject to evaluation as other evidence.

Meanwhile, in practice, the courts often ignore the conclusions from the review, as well as from other conclusions that are submitted to the case file by the parties, and the decision is based solely on the conclusions from the expert opinion obtained as part of the forensic examination.

Such an approach is contrary to the current procedural legislation, including the previously mentioned provisions of Part 5 of Article 71 of the Arbitration Procedure Code of the Russian Federation, and such actions of the court may lead to the cancellation of its decision in a higher court if it is proved that there are defects in the expert opinion, due to which there are grounds for its critical assessment by the court.

Thus, the conclusions from the expert opinion can be taken into account by the court when making a decision if it was obtained without violations of the current legislation, including if such a conclusion is reasonable, there are no contradictions in it, and the case materials do not contain evidence to the contrary.

At the same time, the court's decision must also contain the court's conclusions made by it based on the results of the assessment of other evidence submitted to the case file regarding the forensic examination, including the review of the expert opinion and other conclusions obtained by the parties out of court, that is, the court must motivate why it did not accept the conclusions from such documents, and the conclusions from the expert opinion were accepted.