These procedures allow that on the basis of expert reports or an evidentiary procedure subject to a jurisdictional decision equivalent in effect to a local judge’s ruling the parties reach a settlement without having recourse to legal action, thus relieving the courts of law by reducing the number of court proceedings overburdening the system.
Designation of a forensic expert
Pursuant to Act XLV of 2008 on particular non-contentious notarial procedures the designation of a forensic expert may be requested from the notary if special expertise is required to judge or establish facts or other circumstances of primary importance for the applicant, and there is no related court proceeding pending. In contrast to the procedure of preliminary evidence no opposing party has to be indicated.
The appointment of a forensic expert may be requested by submitting an application which shall contain the following:
· the applicant’s name and domicile (registered office),
· an express request to conduct the procedure,
· reasons for the application, a brief summary of the facts,
· subject and venue of the expert inspection,
· issues on which the expert is required to present an opinion,
· indication of the competent notary, data to establish the jurisdiction of the notary.
The notary may appoint a forensic expert from the registry of experts, an entity authorized to give expert reports, an expert institution or a government body or institution specified in other laws. Exceptionally, merely in the absence of the above, may other experts be designated. The expert has to submit the expert report within 30 days from the receipt of the designation. This time limit may be extended by a maximum of 30 days in one instance at the request of the expert if filed within the original deadline. The expert opinion may be the basis for a settlement, but in case of a subsequent lawsuit it may be used as evidence.
Pursuant to Act XLV of 2008 on particular non-contentious notarial procedures the notary may conduct a preliminary procedure to preserve and secure evidence thus enhancing a simplified and rapid enforcement of rights.
By way of this procedure the parties may obtain evidence before initiating a lawsuit in order to resolve their dispute, which – in case it goes to court – may be used directly at the trial accelerating the outcome, or may promote an out-of-court settlement.
A preliminary procedure may take place if
· there is reasonable cause to suggest that the taking of evidence could not be performed successfully during a later hearing or it would entail considerable difficulties,
· it is plausible that the preliminary procedure facilitates to decide the dispute,
· the party concerned is under a warranty obligation for the deficiencies of some goods
· the preliminary procedure of evidence is permitted by specific legislation,
· the applicant has a legal interest in acquiring the evidence – especially in the establishment of any relevant fact or condition.
In this procedure, in contrast to the appointment of an official expert, the opponent has to be indicated.
In case there is already a pending civil or criminal proceeding related to the matter at issue the preliminary evidence may not take place before the notary.
Upon the request of the applicant the notary may arrange for the appointment of a forensic expert if it is deemed necessary for the procedure.
Preliminary evidence may be initiated by submitting an application to a competent notary. The notary is obliged to hear both sides and record their statements in minutes.