Expert Opinions

Expert Opinions under Article 293 of the Code of Civil Procedure

(1) The parties may obtain a scientific opinion from an expert concerning the facts at issue in the case. No additional time may be requested solely for this reason.

(2) On request or of its own motion, the court may summon and hear the expert who prepared the report. At that hearing, the judge and the parties may ask the necessary questions.

(3) If the expert fails to attend the hearing without a valid excuse, the report will not be taken into consideration by the court.

Court of Cassation Decision

Republic of Türkiye, Court of Cassation, 15th Civil Chamber
Case No. 2015/5127
Decision No. 2016/4635
Date: 10 November 2016
Lower court: Commercial Court

In proceedings under the Code of Civil Procedure, the court must take into account and assess a party's expert opinion where it is relevant to the case, particularly on matters requiring specialist or technical knowledge.

The defendant's lawyer requested appellate review of the judgment identified above. Having established that the appeal was submitted within the prescribed time, the Chamber examined the case file and deliberated as follows.

Decision

The action concerns recovery of a claim arising from defective work under a contract for works.

The claimant company was the employer and the defendant company was the contractor. The claimant's lawyer stated that the parties entered into two contracts, dated 4 February 2009 and 21 May 2009, for construction of the claimant's building. After work under those contracts, the parties signed a settlement protocol on 5 March 2010. Following the issue of the building occupancy permit, defective basement waterproofing caused increasing damp. The claimant approached the contractor without success and then obtained an assessment of evidence in miscellaneous proceedings numbered 2013/121 before the court anonymised in the source. The expert report was served on the defendant, who objected. The claimant stated that it had to commission the necessary work from a third party and sought TRY 50,150 for two invoices and TRY 580 in assessment costs.

The defendant's lawyer argued that cracks in the building arose from loads outside the approved project affecting its structural condition, that additional weights and vibrating equipment caused the cracks, and that the damage resulted from misuse for which the claimant was responsible. The lower court allowed the claim, and the defendant contractor appealed within the prescribed time.

During the proceedings, an on-site inspection was carried out and a civil engineering expert submitted a report dated 23 March 2015. After service of the report, the defendant's lawyer raised substantial objections. The court decided the case on that report without obtaining a supplementary report to address those objections. The defendant supported its objections with an expert opinion obtained under Article 293 of the Code of Civil Procedure No. 6100.

An expert opinion under Article 293 allows parties to obtain specialist or technical information from an expert of their own choosing to clarify and understand a dispute and support their claims or defences. To protect their interests, particularly where they are dissatisfied with a court-appointed expert's report, parties may obtain and submit an expert opinion so that the facts can be fully clarified and a just decision reached. A court must consider and evaluate a relevant expert opinion, especially on matters requiring specialist or technical knowledge.

If a party objects to an expert report on the basis of such an opinion, and the court does not consider or give reasoned answers to those objections, this may violate that party's right to be heard. This right is an important aspect of the right to a fair trial under Article 27 of the Code of Civil Procedure, Article 36 of the Constitution and Article 6 of the European Convention on Human Rights.

The expert opinion submitted in this case contained findings contrary to those in the court-appointed expert's report, with serious contradictions between them. Instead of referring the file to a new panel of experts to resolve those contradictions, the lower court relied on an inadequate report subject to substantial objections and did not evaluate and discuss the expert opinion with reasons in its judgment. This was incorrect and required reversal.

The lower court should obtain a report from a panel selected under Article 266 and the following provisions of the Code of Civil Procedure. The panel should include civil engineers with expertise in structural engineering and insulation, and conduct an on-site inspection if necessary. Its report must permit judicial review, establish whether the contractor's work was defective and, if so, whether the defects arose from misuse. The parties' arguments and defences must be considered. Any objections to the report should be addressed through a supplementary report, and judgment should then be given on the resulting findings.

Conclusion

For these reasons, the defendant's grounds of appeal were accepted and the judgment was reversed in the defendant's favour. The appeal fee paid in advance was to be refunded on request. A request for correction of the decision could be made within fifteen days of service. The decision was adopted unanimously on 10 November 2016.