Unfortunately, it is still (too) common: A discussion between the shipyard and its client about the quality of the work delivered. For example, shipyard De IJzervreter had performed various activities on a steel motor yacht. This included overhauling the Perkins diesel engine, applying antifouling, sealing seams on the deck, fitting a bow thruster and overhauling the electrical system.
So said, so done. The customer returned very quickly with a large number of complaints and refused to pay the invoice. Do you want to sue? That is very much the question. In Dutch law, the rule is: “He who asserts, must prove”. So if the client claims that the yard has delivered faulty work, it is in principle up to the client to substantiate this. Often this is done by means of an expert report, but just as often the shipyard says at once that this is a party expertise and for that reason not independent (and therefore not reliable …).
So, still sue!? I suggest the following: when the shipyard unabashedly sues, a judge will want to hear both sides of the story. In other words, it is rare, if ever, that a judge will simply grant a claim in the aforementioned setting without inquiring more deeply into the parties’ contentions back and forth. Now everyone has learned something in life, the judge for the application of the law, but he / she may not be expected to simply judge the claims of the parties on their merits, as far as the technical part of the dispute is concerned.
In such a situation the judge will therefore order a so-called expert examination. An independent expert of the court is then instructed to investigate the dispute on the basis of questions to be formulated by the court and the parties and to give an independent/ impartial opinion. The judge will then give his or her judgment based on the results of that investigation. It is not uncommon to find that the performance of the yard could be criticized, no matter how convinced the yard was of its own expertise and quality.
Usually the outcome of such an expert opinion means that both parties have to make concessions because certain positions on both sides are ultimately untenable. However, this only emerged after a costly court case, which of course did not do the relations between the parties any good either.
Can it be done differently and cheaper? Yes it can! The law provides the possibility of requesting a so-called preliminary expert opinion. This means that a party can petition the court to appoint an expert to examine the dispute between the parties in advance. This means that a writ of summons is not issued first, with all the associated costs, but that in a short procedure the applicant and the other party can set out their positions and on the basis of these positions the court will appoint an expert who will map out the ‘technical’ dispute.
What is the big advantage of this? By means of this short procedure, which also involves a small court fee, the parties know in a relatively short time (plus approximately 3 to 4 months) where they stand regarding their mutual positions. There can also be no discussion (as a rule) about the outcome of the investigation, because by definition the expert/expert is deemed to have conducted it expertly and impartially. In other words, such an examination is in fact the same and has the same status as the expert examination that may be ordered by a court in subpoena proceedings, only without first having to issue a costly subpoena with substantial court fees, and clarity is obtained on the technical aspects of the dispute in a much shorter period of time. The parties therefore know where they stand much more quickly and, as a rule, this allows them to reach a settlement with each other without a summons, without lengthy and costly legal proceedings.
Another possibility to reach a report to which both parties are bound, without the intervention of the court, is a so-called binding opinion. In this situation the parties can consult with each other and, on the basis of questions to be drawn up by them jointly, ask a supposedly independent expert to give an opinion about the dispute that divides them. The parties must promise in advance that they will respect and follow the outcome of this opinion. It is not called “binding” advice for nothing. In this way it is possible to get clarity within an even shorter period of time. All kinds of agreements can be made about the costs of such an investigation. For example, this can be done on the basis of unevenness or simply on the basis of shared costs. Bear in mind that as a party you are bound to the results of this advice. If you do not like it, you cannot say afterwards (barring specific grounds) that you are not bound by it.
Hearing both sides of the argument.
Actually there is only one argument on which such an advice could be set aside, and that is when the essential principles of hearing both sides have been violated. In other words: if both parties have not been completely free to explain their points of view to the expert, or if it can be shown that the expert did not want to take all the arguments into account in his opinion, you as a party could say that you are not bound by this. However, these requirements are very strict.
In the case of the shipyard De IJzervreter the parties had agreed on binding advice, but the shipyard still felt that it was not bound. The judge clearly ruled otherwise. Incidentally, there are now several known judgments in which a party was found to be in the right with respect to its complaints, in which only an expert report drawn up by order of the client was used to substantiate them. As a shipyard, it is not enough to dismiss the report without reason, arguing ‘that it will be biased’.
Tip: If there is a dispute with a client about the quality of the work carried out, ensure that an expert (if possible appointed by both parties) assesses the work carried out. In addition, always stipulate that the opportunity is given to rectify any errors, in order to avoid a counterclaim for repair costs incurred by a third party.