In judicial review proceedings, expert reports prepared by public officials do not have greater value than those produced by the applicant

In judicial review proceedings, taxpayer and government may rely on expert evidence to defend their interests.

This occurred in the case that gave rise to the supreme court judgment dated February 17, 2022 (appeal 5631/2019). The applicant had requested authorization to export a painting, which had been denied because, according to the government, the painting had exceptional value for the purposes of the Spanish historical heritage legislation and therefore had to stay in the country. In a judicial review proceeding, the appellant produced two reports by experts on the painter’s work and both concluded that the merits of the painting were undeniable, but not exceptional in the context of the artist's work. Against this, the government lawyer produced two reports on the painting, prepared by two technical public officials and affirming that the value of the work was justification for it staying in Spain.

The Madrid High Court considered that the reports produced by the government had greater value as evidence because the government’s experts generally act with a greater degree of objectivity and impartiality, and it went on to dismiss the application without examining the produced reports and opinions in depth.

Among the matters qualifying for examination in a cassation appeal are “the nature and value as evidence of reports by the government existing in the administrative case file in addition to those produced in the courts as expert evidence, all of which must be prepared by the government's public officials or technical staff”. The Supreme Court gave the following reasoning:

(i) Under the Civil Procedure Law (applicable in this context), expert reports must be prepared by experts having the necessary scientific, artistic technical or practical knowledge to assess facts or circumstances relevant to the case and obtain certainty about them.

(ii) There can be no doubt that due to their training and selection processes, public officials and technical staff serving the government may be expected to have the relevant specialist knowledge to provide evidence of facts in expert reports. However, the probative force of an expert report is not a given in the law, and therefore must be appraised according to the rules of healthy criticism. In that appraisal, judges are free to form their own opinion, although they have to explain their reasons for accepting or reject the expert's comments, which requires all elements of the report to be analyzed rationally.

(iii) In any event, an opinion formulated by the government produced in a lawsuit between third parties does not have the same value as one produced in a proceeding in which the government is a party. In this case, “it does not make sense to say that the report or opinion is impartial and therefore warrants extra credibility”, because “a person who is a party cannot be impartial”. Furthermore, there are cases where reports originating from public officials cannot be considered as expert evidence, especially where the parties do not have the chance to request explanations or clarification. In these cases, the value of the reports is no greater than their value as administrative documents and it is as such that they have to be appraised.

The Supreme Court therefore upheld the cassation appeal because the lower court’s judgment had not compared the various reports and opinions produced in the proceeding and, without questioning the technical ability of its authors, based its decision only on the alleged greater objectivity and impartiality of the government’s experts.