Introduction
On 1st January 2025, the revised Swiss Civil Procedure Code ("CPC") has come into effect, introducing significant changes. We will be analyzing these changes in a series of concise articles, aimed at offering a clear and current understanding of these changes.
This contribution highlights the new status under of the revised CPC of private expert reports as documentary evidence ("physical records").
Before the revision: Private expert reports as mere party allegations
Originally, the legislator had refrained from regulating private expert reports in the CPC. According to the case law of the Swiss Federal Supreme Court, private expert reports were not considered as formally "admissible evidence" within the meaning of Art. 168 CPC.
Rather, private expert reports were considered merely as "particularly well-substantiated" party allegations. As such:
- They could only constitute an indication of the realization of certain facts (and not the evidence of them).
- They were deemed to be taken into account by the courts only marginally, that is, only to the extent that they were corroborated by substantiated circumstantial evidence, if they raised doubts about the conclusiveness or completeness of a judicial expert report, or if they had not been duly disputed by the opposing party (Art. 150 CPC).
Despite this restrictive case law of the Federal Supreme Court, in practice parties and lower courts have often relied on private expert reports (usually together with the subsequent questioning of the private expert as a witness), e.g. when there was a need to quickly verify an existing state of affairs and obtaining a judicial expert report was impractical due to the excessive length of the proceedings (for example in the case of construction defects).
After the revision: Private expert reports as admissible evidence
The new Art. 177 CPC stipulates that private expert reports have the status of documents ("physical records") and thus constitute admissible evidence within the meaning of Art. 168 para. 1 lit. b CPC.
As is the case with all other means of evidence, courts will thus have to determine the relevance/evidentiary value of a private expert report in the context of the free assessment of evidence, on the basis of the concrete circumstances of the specific case (Art. 157 CPC). Potentially, the private expert report has thus full evidentiary value, depending on the assessment that shall be made by the court, which will take into account inter alia:
- The expert's competence and reputation, the clarity of the report, the proximity of the expert to a party as well as the procedure applied in drafting the expert report.
- When assessing the evidence, the court will also take into account that private experts are not subject to the criminal consequences of perjury pursuant to Art. 307 of the Swiss Criminal Code, unless they are called as witnesses in the further course of the proceedings. Furthermore, unlike judicial experts, their reports are not prepared within a specific procedure that duly safeguards the parties' right of equal treatment and their right to be heard.
In this regard, parties and courts may draw inspiration from the guidelines and best practices developed in the international arbitration field in order to fully value the new regulation. In the context of arbitration proceedings, it is indeed common practice for parties to appoint their own experts, who provide written expert reports that may largely diverge. It is then for the arbitral tribunal to weigh the different reports, often after the diverging opinions have been tested during cross-examination at the hearing.
Relevance of the revision for pending civil proceedings
It is important to note that, pursuant to Art. 407f CPC, the new regulation on the private expert reports applies to all proceedings that are pending on 1st January 2025.
Accordingly, Courts will have to treat private expert reports already submitted by the parties as evidence (and not as mere party allegations).