Introduction

If civil procedure lies at the heart of every legal system, the taking of evidence lies at the heart of every civil procedure. Yet, there are very few comparative works that attempt to present the topical issues of evidentiary proceedings in civil litigation. The harmonization of procedural law in the European Union has not changed this situation, irrespective of the fact that mutual cooperation of European judicial systems as regards the taking of evidence in civil and commercial matters forms part of the European acquis. Nevertheless, comparative research of the trends and developments in the national practices of evidence-taking in civil litigation has a lot to offer. Since the start of the new millennium, many contemporary jurisdictions are revisiting the fundamental principles of their civil procedures. The core areas of the civil process are not left untouched, including the way in which evidence is being introduced, collected and presented in court. One generator of the reforms in the field of evidence-taking in the past decades has been the challenge of slow and inefficient litigation. While the taking of evidence is not the only reason for the endemic deficiencies that have put into jeopardy the human right to a trial within reasonable time, in many national justice systems it has been contributing a fair share to it. Difficult access to information, inaccessibility of witnesses, and time consuming processes of producing expert testimony have been the cause of frustration for many court-goers across the European continent and elsewhere. Both in Europe and globally, reaching a balance between the demands of factual accuracy and the need to adjudicate disputes in a swift, cost-effective and efficient way is still one of the key challenges. The rise in court backlogs, the difficulties of many national civil justice systems in securing a reasonable length of the central stages of their civil proceedings as well as an increased influx of new cases and reduced budgets of national judiciaries contribute to the reform trends aimed to streamline, simplify and accelerate fact-finding procedures.

The second reason why many countries are reforming their law of evidence is related to cultural and technological changes in modern societies.

Introduction

For decades now, it has been claimed that as regards civil procedural law the Republic of Macedonia belongs to the Continental tradition and more precisely to the so-called ‘Germanic legal circle’. Just as in the other ex-Yugoslav republics, the fundamentals of Macedonian civil procedure are deeply rooted in the Roman law tradition within the Germanic circle. It was the Austrian Code of Civil Procedure of 1895 that traditionally provided the inspiration and model solutions for civil procedural issues. However, this practice was discontinued beginning about ten years ago. A striking trend of convergence between the common law and Continental legal systems spread to Macedonia, resulting in a completely different approach to the concept of civil proceedings in general, and particularly with regard to the rules of evidence. The changed position of expert evidence as a particular means of evidence in Macedonian civil procedure seems to be one of the best examples of shifting from the typically Continental approach to the more adversarial approach.

This contribution aims to analyse the altered rules of expert evidence in Macedonian civil procedure and also to reflect on the extent to which the changed position of expert evidence has not lived up to the expected improvement in efficiency and cost cutting, which were the prime reasons for the change.

A Summary of the Regime of Expert Evidence in Macedonian Civil Procedure before 2010

Following the independence of Macedonia in 1991, the Yugoslav Civil Procedure Act of 1976 continued to apply until 1998, when the first Macedonian Civil Procedure Act came into force. Although at that time the country went through a period of fundamental changes in its political and economic order, this did not imply a re-evaluation of its system of civil justice. Therefore, the first Macedonian Civil Procedure Act did not depart from the former Yugoslav Act. In the field of fact-finding and evidence-taking, Macedonian civil procedure was a mixture of adversarial and inquisitorial elements, with emphasis on the latter.

The discussions concerning the possible reforms of civil procedure started several years later, when the Macedonian Judiciary was hampered by extensive backlogs of civil cases.

Introduction

Until recently, new means of information and communication technology (ICT) had a limited effect on traditional civil procedure. Currently, new methods for storing, gathering and disseminating data are being considered by the courts, and using digital technology in courtrooms has become a reality. However, the incorporation and use of new technologies does not merely signify a technical challenge; it has an impact on traditional procedural values and, moreover, procedural and especially evidentiary rules. While the use of electronic technology in civil proceedings may promote efficiency and raise the quality of civil proceedings, the focus on efficiency should not overshadow the perceived legitimacy of the proceedings.

Civil procedure is selective as regards the information that can be considered in court actions. It provides for rules, which the court has to follow when reaching its decision. Civil proceedings consist of a series of acts by the parties and the court. These acts are performed simultaneously or consecutively, and the civil procedural rules determine the ensuing procedural consequences. The principle of legality is the basic criterion for the admissibility or inadmissibility of procedural acts.

The use of modern technology may improve the functioning of some traditional procedural principles if appropriate legal guarantees are provided. One of the main concerns is whether ICT, as a generator of swift proceedings and simplified solutions, will influence the right of access to justice and comprehensively contribute to the judicial protection of rights and the efficiency of litigation.

Due to recent developments in the use of ICT in different fields of everyday life as well as in the field of justice, the concept of e-justice used in the frameworks of both European procedures and national justice systems should be further defined. E-justice could be broadly defined as covering the use of ICT in all fields of justice. In the European context, an e-justice system should provide the following functions: 1. Access to information in the field of justice; 2. ‘Dematerialization’ of cross-border judicial and extrajudicial proceedings; and 3.

The subject of evidence is in fashion in France and probably elsewhere. I counted two important and international colloquia in France on the topic of evidence in 2013. It is a new topic in France. Traditionally, there were no textbooks, no papers and obviously no lectures on the topic. Evidence is basically taught during the first year of law school in a broad, introductory course on law. Depending on the course professor, the topic of evidence may or may not be covered; if it is, there are only three to nine hours dedicated to the topic.

Since the end of the nineteenth century there has been only one casebook written on evidence. Obviously, evidence is studied in the context of procedural law – whether criminal, administrative or civil – but again this is in a wider context only, and covers the procedural aspects of evidence.

The renewal of evidence as a topic of interest may be explained by several factors: the ‘proceduralization’ of law, the influence of the common law and the difficulty of proving discrimination and harassment claims. This trend is accompanied by the development of the loyalty principle and its counterpart, the right to proof. This contribution will first present the general picture of evidence law in France, then the emergence of the loyalty principle and lastly the limitations of this principle imposed by the right to proof.

General Picture of Evidence Law in France

The rules of evidence in French law are very different from the rules in common law countries even though some parallels can be drawn. In English, the two words ‘evidence’ and ‘proof’ are equivalent to the French term ‘preuve’, which comes from ‘épreuve’, or ordeal. Thus, in French law proof is not what we can see and hear (through testimony, for example) as the etymology of evidence would imply; rather, it is what the plaintiff and the defendant experience. This explains why proof by confession is still the basis – often repressed – of French criminal law.

Expertise (by this I mean the use of specialized knowledge provided by experts in particular fields) is now the most important means of proof in civil law, as it is in criminal law.

Introduction

Taking evidence in competition cases is particularly delicate since companies are careful to hide any evidence that may prove wrongdoing on their part. This is due to the severe penalties that are prescribed for infringement of competition rules. This problem is especially acute in cartel cases, and consequently competition authorities use different methods to detect and prove cartel activities. One of the most effective methods that is currently used to fight cartels is the leniency programme, whereby companies that provide information about the cartel in which they participate may receive full or partial immunity from fines. In addition to fines that can amount to up to 10 per cent of the total turnover of the company in the preceding business year, companies are liable for the civil consequences of the competition law infringement (e.g. damages) as well. Claims for compensation for damages caused are made before national courts in private law actions from which there is no immunity under the leniency programme. Private law actions in competition cases have been acknowledged as highly important in recent years, and the EU Commission stimulates such private enforcement, which is still low in the EU as compared with the USA. This ‘improvement’ of private enforcement, however, requires adequate access to information, essential for preparing lawsuits by the private damages claimants, that is in the possession of the defendants and competition authorities.

Since competition authorities, including the EU Commission, are bound by the rule of confidentiality of sensitive documents, which is part of the leniency programme as well, the question is how to adequately protect the individual interests of victims, on the one hand, and not jeopardise the effectiveness of the leniency programme, on the other hand. The Court of Justice of the European Union (CJEU) and the General Court tackled this issue in several cases that will be analysed in this article. As a result of the decisions made in these cases, case law does not favour leniency applicants entirely, while Directive 2014/104/EU takes the opposite view. Finally, this article explores how this issue is handled in Slovenia, and its compatibility with EU law. So far, there is no recorded case that refers to the disclosure of leniency documents in the Republic of Slovenia.

In order to fully understand the law of evidence in any procedural system, one needs to have knowledge of the wider procedural context in which it is used. Therefore, this contribution on evidence in Dutch civil procedure will start by providing some basic details of the Dutch procedural system.2 The discussion will be limited to civil matters, since evidence law in the Netherlands is not generic for all types of litigation. A specific law of evidence for civil matters exists and since 1988 it can be found (for the largest part) in the Code of Civil Procedure. It will appear that the Dutch law of evidence in civil matters is still (to a certain extent at least) based on traditions, often derived from its French 19th century model, but that especially since 1988 important innovations have been introduced which have resulted in rules that – when considered within the wider procedural framework – have prepared Dutch civil evidence law well for some of the challenges of the 21th century.

In this contribution I will mainly concentrate on the procedure initiated by writ of summons (contentious litigation). The other type of civil action, i.e. the procedure started by way of a petition (originally only for non-contentious matters, especially family matters) will be addressed incidentally. In the future, the differences between the two types of procedure will remain even though it is the intention of the Dutch Legislature to introduce a single document for bringing a civil court action. The single introductory document is not aimed at removing procedural differences, but is mainly introduced for reasons of simplification and digitalisation of litigation.

Like so many other jurisdictions in Europe, the Netherlands has embraced the concept of judicial case management in civil matters (especially since the reforms of the Code of Civil Procedure in 2002). This means that the traditional Dutch principle of the ‘passivity of the judge’ (in Dutch: lijdelijkheid) in civil matters has faded away to a considerable extent. The case management powers of the modern Dutch judge concern in the first place procedural issues, but they may to a certain extent also concern the merits of the case.

Introduction

In Slovenian (and in former Yugoslav) civil procedure, party access to relevant information and documents, which are in the possession of the opponent and which could adversely affect the opponent's case, is limited. Traditionally, based on a German and Austrian heritage of civil procedure, the principle that no one is obliged to help his adversary win the case (nemo tenetur edere contra se) applied. Experience and recent developments abroad – not only in common law jurisdictions, which have for a long time embraced broad duties to disclose, but also in civil law systems which were traditionally restrictive in requiring the parties to contribute to the establishment of the true facts – show that this approach needs to be re-examined.

The alternative to the principle that the party to a civil case cannot be obliged to ‘put weapons in the hand of its opponent’ is the common law concept of disclosure of documents. Thereby especially the English Civil Procedure Rules of 1998 (which have done away with some extremes of discovery) seem to be an important source of inspiration for Legislatures in civil law jurisdictions nowadays. The main idea of ‘disclosure’ is that the parties should as early as possible give advance notice of all relevant documents – not just those supporting their case but including those which adversely affect their case or which support the other party's case.

Introduction

The idea of addressing the topic of the impact of language differences on litigation was prompted by the reading of the essays collected in a special issue of Erasmus Law Review under the heading ‘Law and Language: Implication for Harmonization and Cross-Border Litigation’. These essays helped me frame some thoughts on the problems that may arise when the dramatis personae of a judicial proceeding do not share the same native language.

Language differences can affect litigation in many ways, and most of all in transnational cases or, to use the preferred expression in the EU context, in crossborder cases. Cross-border litigation implies that at least one party to a case will have to litigate in a foreign language, since the rule is that the court language is the official language of the forum state. Whenever international rules on jurisdiction allow the plaintiff to do some forum shopping, they also allow him to engage in language shopping. Therefore, often the defendant is the one who is faced with language obstacles. It is clear that these obstacles must not harm his right to a fair trial, nor must they contribute to delaying the proceedings.

Language differences may arise at the very beginning of a case (just think of the problems brought about by service of process), but in this contribution I would like to make some remarks on the impact of language differences at the evidencetaking level, that is, with reference to the documents that are produced as evidence, and to oral evidence, namely, witness testimony or the interrogation of the party himself, as regards the legal systems – such as the Italian system – in which the parties cannot be heard as witnesses, but are subject to a particular form of examination that in Italy is qualified as ‘formal interrogatory’.

The Protection of Language Rights

The problem of language differences and their impact on litigation and on the rights of the parties can be dealt with from different angles. One is to see the problem within the framework of so-called language rights. Scholars have emphasized that ‘the concept of language rights is in an embryonic stage only’, and, as a matter of fact, it is difficult to offer a clear definition of what is meant exactly by ‘language rights’, if one steps back from the perspective in which they are often analysed, namely, the protection of minority languages.

Introduction

While the court is the ultimate finder of facts, a case may involve such highly technical issues that the court is unable to discharge its fact-finding function unless qualified persons assist in the process. As the learned Hong Kong district judge in Chan Shu Wing v. Link Management Ltd said: ‘Expert evidence is relevant if it will assist the court to resolve one or more relevant issues in dispute in the cause or matter and the issue is not one which the court can come to an informed decision without such expert evidence.’

The Hong Kong expert evidence regime in the past was highly adversarial. It was not uncommon that experts were instructed as ‘hired guns’. Instead of assisting the court to find the truth, adversarial experts acted more like advocates than witnesses. Part A of this contribution seeks to expound the procedural framework for the use of expert evidence in civil lawsuits, highlighting those changes made pursuant to the Civil Justice Reform to tackle the adversarial excesses in the system. Part B of this contribution explores expert evidence within the context of personal injury litigation in Hong Kong (which is governed under a set of specialist rules). Given the nature of personal injury disputes, the use of expert evidence is essential in the fact-finding process. The way expert evidence is deployed and managed under the specialist rules in personal injury litigation provides invaluable insight for further reform in the general procedural regime.

Part A: An overview of the expert evidence regime after the Civil Justice Reform in Hong Kong

The Role of the Expert in Civil Litigation

The role of the expert in civil litigation is clear under the law. An expert witness, in assisting the court, should give independent and unbiased opinions on matters within his own expertise. It is not the function of the expert witness to usurp the role of the court in the fact-finding process or to assume the role of an advocate. By definition, expert witnesses are authorities in specialist areas where no layman (including the judge) is capable of navigating by himself.

Introduction

European civil procedural law deals with the taking of evidence in civil matters only marginally. Admittedly, cooperation in the taking of evidence is among the areas that may be subject to measures adopted by the European legislators. But in the context of evidence-taking, ‘cooperation’ and ‘harmonization’ are two rather different, and sometimes contradictory concepts. As initially stated in the now almost 15–year-old EU instrument regarding the taking of evidence in civil and commercial matters, the aim of the Regulation was to ‘improve, simplify and accelerate cooperation’, and to ‘make [it] easier to take evidence in another Member State’. Yet, the very core of the evidence-taking – who (and when and how) has to select, present and assess the evidence – was left untouched.

Moreover, in line with the principles of subsidiarity and proportionality entrenched in the EU Treaty, the European legislators cannot go beyond what is absolutely necessary to achieve the imminently set objective, i.e. to improve the cooperation between the national courts of different European jurisdictions. Whether these courts have diametrically opposite approaches and rules to evidencetaking, from the EU law perspective it does not matter. As, allegedly, the desired objective of facilitating judicial cooperation has largely been achieved, no further actions that would go beyond the friendly cross-border judicial assistance between courts and promotion of mutual knowledge of different evidence-taking systems in the EU countries are either desired or permissible.

Is this really the case? Can cooperation be successful within the ‘common area of justice’ if the practices of the taking of evidence in civil and commercial cases are exceedingly different and are rooted in different rationales and different core practices? In this text, I will argue that if a ‘common area of justice’ is to be taken seriously, some harmonization in the approach to the taking of evidence is indispensable.

The developments regarding the taking of evidence conform to the wider trends of convergence triggered by the change in the setting of the goals of civil litigation. In all recent reforms, the key is the principle of proportionality. In the context of evidence-taking, the principle of proportionality, when properly understood and accepted, may prompt far-reaching changes – in particular where the principle of proportionality was largely unknown in the field of civil procedure.

Introduction

The regular form of appeal proceedings in countries of the European continental legal tradition involves review of facts and law. The appellate court re-examines the evidence and legal arguments advanced at first instance with a view to correct errors in adjudication and procedure. In some European legal systems, parties may introduce facts and evidence which were not addressed in the original judgment, and the appellate court may examine them at a new hearing. Often, however, litigation on appeal does not involve an actual second de novo hearing in which all evidence is introduced anew. The review may be limited to the examination of the first instance files. Based on the review of documents and protocols of the first instance court, the appellate court may (or may not) make its own independent findings of fact.

In a number of countries of the European continental legal tradition it is quite common and normal to hold oral hearings before appellate courts with the purpose of establishing facts and reviewing the findings of the first instance court. This contribution will, however, present as a contrast one example where this regularly does not happen: in post-Yugoslav countries. As a particular example of this procedural style, we will use the law and practice in the Republic of Croatia.

Oral Hearings in Croatian Appellate Courts: From a Theoretical Option to a Legal Impossibility (and Back)

The story about the introduction and abolition of oral hearings in the Croatian appellate courts is one of trial and error. Initially, until the 2003 Amendments to the Civil Procedure Act, the option of holding oral hearings for the purpose of reexamination of evidence in the appellate courts existed, but it was dependant on the discretionary decision of the appellate courts. The courts almost never made use of this option, so the 2003 Amendments abolished this option entirely. However, the 2008 CPA Amendments reintroduced the facultative possibility of holding oral hearings before the appellate court. The option of appellate evidentiary hearings was strengthened further in the latest 2013 CPA Amendments. Namely, following several decisions of the European Court of Human Rights that declared the practice of successive remittals to be one of the systemic problems of Croatian civil procedure, the CPA amendments over the last five years progressively introduced a prohibition of multiple remittals of first instance judgments.