The life of a lawyer is full of surprises. Especially in Poland, especially in recent years. It is difficult to predict whether the rules applicable today, tomorrow or the day after tomorrow will not be thrown into the dustbin of history by the legislator. This applies to both large issues, let's call it systemic, as well as smaller ones, relevant only to individual industries or clients. As the Romans used to say - justice is constant and unchanging willingness to give what is due to whom. Despite this, the Polish legislator, constantly amending the regulations, prefers the maxim over the Roman legal thought panta rhei everything flows...
As if that wasn't enough, a very similar, almost identical provision, expressing a universal and - seemingly - the only sensible rule, may have a different meaning in one act than in another. An example of such a situation is Art. 84 § 1 of the Code of Conduct administration and Art. 278 § 1 of the Code of Conduct civil. Without going into stylistic differences, its content, in simple terms, is as follows: if the determination of a given circumstance requires special knowledge, exceeding the level of general knowledge, the court or administrative body should consult an expert. It would seem an obvious consequence that the content of an expert's opinion should be binding for a layman who orders it. But are you sure?
While in civil proceedings it is true that the Court cannot "disbelieve" the opinion of an expert (for the curious - see the jurisprudence cited under the entry), however, in administrative proceedings it is not so obvious. As indicated by the Supreme Administrative Court in the judgment of July 17, 2020, ref. no. act II OSK 2979/18, if the authority does not agree with the conclusions of the opinion, it should refer to the findings made by the institute and explain why they are not acceptable to it, or admit evidence from an expert opinion in order to clarify any doubts. It follows from the above that if, for some reason, the body does not share the opinion of the institute, it is enough to explain in the decision why it believes otherwise. The Supreme Administrative Court goes in the same direction, only "more" in the judgment of July 17, 2020, ref. II OSK 448/20, where the Court directly states that the authority is not bound by the expert's opinion, which means that when evaluating it, it may both consider it accurate, as well as disqualify it and adopt a different opinion – own, based on science or experience.
To make it more interesting, the same Court in its judgment of November 4, 2021, file ref. Act II OSK 462/21 emphasizes another difference in relation to civil proceedings. As the Court indicates, taking evidence from an expert opinion is not the only way to determine the facts when this task requires special knowledge. In such a situation, an administrative authority, unlike a common court, may base its decision on other evidence.
In summary, the authority:
– does not have to admit evidence from an expert opinion, even when expert and specialist knowledge is necessary to resolve the case,
– if he allows such evidence, he does not have to base his decision on it – he can freely argue with the expert, sitting comfortably in the armchair behind the desk.
I leave the question of why the legislator has left the civil servant much more freedom than the judge, I leave unanswered.
Example rulings:
- Judgment of the Supreme Court of April 20, 2022, file ref. I NSNc 45/20: “The court violates Art. 233 § 1 of the Code of Civil Procedure, arguing in the sphere requiring special information with the expert's conclusions without supplementing the position of the experts who issued different opinions, or without consulting another expert. When the case requires special information, the court cannot decide against the opinion of experts.”
- Judgment of the Court of Appeal in Szczecin of March 3, 2022, file ref. act I ACa 819/21: "An opinion presenting assessments using special information cannot be assessed by the court in the layer concerning the scientific views or specialist knowledge presented, even if the members of the adjudicating panel have such knowledge."
- Judgment of the Court of Appeal in Białystok of February 28, 2019, file ref. I ACa 49/18: “Evidence from an expert opinion in court proceedings is the only way to obtain special information necessary for resolution and cannot be replaced by another evidentiary activity. Therefore, undermining the probative value of the opinion by questioning the special information to which the experts refer, or drawing further conclusions from such an opinion, based on information of this type, due to the content of Art. 278 § 1 of the Code of Civil Proceedings may take place only by taking evidence from a supplementary opinion of the same experts or from the opinion of another expert.”
- Judgment of the Supreme Court of September 13, 2016, file ref. act I UK 344/15: "In no case can an expert's opinion, which has not convinced the court, be verified, and in particular disqualified, without the use of specialist knowledge."
- Judgment of the Supreme Court of January 31, 2008, file ref. no. II CSK 408/07: “Special information from the court, even if it is related to the reference to the relevant literature, cannot constitute the basis for recognizing the expert's opinion as erroneous and basing the decision on this information. When evaluating the opinions of medical experts, the court may not take a position different from that expressed in the opinion, based on its own assessment of the facts. A different determination may be made only on the basis of another opinion, if it is more convincing and comprehensively presents the question that raises doubts.”
This entry contains general information about the legal issue discussed. It does not constitute legal advice or a solution to a specific case or legal problem. Due to the unique nature of each factual situation and the variability of the legal status, we recommend seeking legal advice from our law firm.