Objections to a court-appointed expert
A valuation of shares takes a long time, and along the way one of the two parties often loses confidence in the expert. On 17 September 2026 the judge-commissioner of the Enterprise Chamber refused the requests of both shareholders. What follows is what that decision settles about the timing of the objection, the standard, the statutory route and the kind of allegation that does strike home.
Judge-commissioner refuses the requests of both shareholders
Two shareholders in a private limited company in financial services agreed on the transfer of the shares and differed only on the price. They asked the Enterprise Chamber to fix that price, the route under Section 2:343c DCC. The Enterprise Chamber appointed a valuation expert, who produced his draft on 6 May 2026.
Matters then got out of hand. The departing shareholder argued that the company had breached the ban on commission and had raised the directors' remuneration outside the rules. The valuation had to take that into account, he said. He lodged disciplinary complaints against two auditors. On 9 March 2026 the Accountants Chamber (Accountantskamer, the disciplinary tribunal for auditors) upheld one head of complaint and imposed a reprimand. That head concerned whether the increase in the management fee had been validly resolved upon. The head concerning the ban on commission was dismissed, on the ground that the breach was not established.
The acquiring shareholder then asked for the expert to be discharged and for one or two new experts to be appointed. It argued among other things that the valuation had stalled, that the expert had an undisclosed professional connection with an expert instructed by the other side, and that he had strayed beyond his instructions by addressing objections covered by an earlier full and final discharge. The departing shareholder made counter-requests: disclosure of the contacts between the expert and the parties, a hearing, a stay of enforcement of a judgment ordering him to pay €100,000, and proof of funds from the other side. The judge-commissioner refused everything.
The objection must come when the facts are known
The request failed at the first hurdle. A party seeking the discharge of an expert on grounds that could objectively give rise to an appearance of partiality must do so as soon as those grounds become known to it. From that follows a duty of pleading that is routinely overlooked. The request must explain when and how the applicant learned of those grounds. The request stated only that the two had appeared together according to publicly available information. When the applicant had discovered this was left open (para. 2.3).
That requirement is no formality. A party who keeps an objection in reserve until the draft turns the wrong way is using it to correct the outcome, and that is precisely what the rule prevents. The same thinking governs applications to recuse a judge, where a request regularly fails on its timing as well.
Dissatisfaction with the outcome is not partiality
The second hurdle is the standard itself. Two circumstances were put forward: the other side's expert had appeared without a fee at a seminar held by the court-appointed expert, and that had not been disclosed beforehand. Neither objectively gives rise to an appearance of partiality, the judge-commissioner held (para. 2.4).
The allegation that the valuation had stalled fared no better. The expert had heard both sides in accordance with the Practice Direction for Experts in Civil Cases, and the parties had made their observations. It is then for him to weigh and deal with those observations himself. Objections to the report come round again when the price is fixed (paras 2.5 and 2.6). A valuation in which the parties disagree is therefore an ordinary valuation.
The Overijssel District Court put the same thought more sharply in June 2026. Asking for another expert to answer the same questions is in principle a rerun that offends the proper conduct of the proceedings. It may be otherwise where the applicant makes it plausible that the court on the merits will, with sufficient probability, decline to follow the findings. Specific objections from a party's own expert do not suffice, because the court on the merits may order further investigation if it finds them well founded (para. 4.7). In that same case the expert had devoted some twenty pages to the objections, and that the applicant remained unpersuaded gave no ground for a replacement.
Those grounds for refusal were not invented by the district court. They come from a decision of the Supreme Court of 30 March 2007 on a request for a preliminary expert report. The starting point is that the court must order such an investigation in principle (para. 3.4). It may refuse where the request offends the proper conduct of the proceedings, where the power is being abused, for instance because the interests on either side are disproportionate, or where the request must fail on some other weighty objection (para. 3.2).
When a party does escape a report has been put into three categories in the case law: serious objections to the way the expert went about his work, real doubt about his expertise, or a report that fails the requirements of impartiality, consistency, intelligibility and logic.
What a reasoned objection does achieve appears from the second judgment on which the Overijssel decision rests. On 9 December 2011 the Supreme Court held that a court is under a limited duty to give reasons for its decision whether or not to follow an expert's findings. It must nonetheless take into account every fact and circumstance the parties have put forward, and test in full whether there is reason to depart from the conclusions. Where it follows the expert it appointed, it generally need go no further than saying that the expert's reasoning strikes it as convincing. It must, however, deal with specific objections in so far as those amount to a sufficiently reasoned denial of the correctness of that view. Where it does not follow the expert, the ordinary requirements for reasons apply (para. 3.4.5).
An objection that fails to secure a replacement is therefore not a wasted objection. It moves on to the court that decides the case, which must address it once it is sufficiently reasoned. For a party considering a replacement that points to a practical choice. Frame the objection so that it survives into that second round, even if the request itself fails.
Section 186 DCCP offers two routes
In proceedings begun by writ a request for a replacement runs through Section 186 DCCP. The third hurdle is the choice between the two subsections. Subsection 4 covers the expert who declines the appointment, cannot properly perform his task or refuses to do so. Under subsection 5 the court may appoint another only after the sitting expert has had the chance to give a further explanation or addition, unless the court considers that pointless.
The difference lies in the timing. The Overijssel District Court rejected the reliance on subsection 4. The request came only after the final report had reached the court, and by then a situation of the kind described in that subsection had passed (para. 4.3). A party who wants the expert gone on the ground that he cannot manage the task must therefore move while the investigation is running. After that only subsection 5 remains, with the heavier standard set out above.
In a valuation before the Enterprise Chamber the route lies elsewhere, and that partly explains the outcome. No appeal lies against decisions of the Enterprise Chamber under Section 2:343c DCC. The second subsection of that provision gives the parties a tool in advance instead. On the appointment they may ask for directions on the valuation standard, the cut-off date and other circumstances to be taken into account. Where the parties disagree on that, the Enterprise Chamber decides on the basis of fairness.
That tool works only in advance. The departing shareholder later asked for a hearing so that the disciplinary developments could still be brought into the valuation. The judge-commissioner pointed out that the expert holds the conduct of the investigation. Facts arising after the cut-off date are moreover left out of account in principle (para. 2.13). The cut-off date thus works as a sieve, however relevant later developments may look.
Where the value does turn on a claim the company holds against a third party, the judge-commissioner set out a workable scheme. Four quantities matter: the likelihood at the cut-off date that the claim will be brought, the likelihood that it will be upheld and for how much, the likelihood that the sum upheld will actually be recovered, and the costs the company will incur. All discounted to the cut-off date (para. 2.6).
An own interest in the outcome does strike home
The fourth hurdle concerns the nature of the allegation, and there lies the difference between the requests that fail and the rare one that succeeds. In June 2024 the Arnhem-Leeuwarden Court of Appeal set an expert report aside and appointed a new expert. In his report on a leaking roof the expert had advised that the follow-up inspection be carried out by the firm of which he was a director. He also offered to supervise the remedial works and held out a quotation for it. The more remedial work proved necessary, the longer that supervision would run, and so he had an indirect commercial interest in the outcome of his own report (para. 2.12).
Two things stand out. The allegation went to the expert's position rather than to the content of his report, and that is exactly the type of allegation the standard catches. And setting the report aside did not fall to be borne by the party relying on it: that it had come about with insufficient independence was not attributable to her (para. 2.13). A successful objection thus costs time and money, but no evidential position.
Contact between a party and the expert is the second category that matters. Where a party is represented by a lawyer, communication with the expert runs through that lawyer in principle. Written observations or requests must, under Section 190(2) DCCP, be copied to the other side immediately. One-sided communication on the substance outside the agreed channels is therefore to be avoided, and the expert need not take unsolicited submissions into his investigation (para. 2.9). The Amsterdam subdistrict judge summarised the core in September 2025: an expert may not work on material the other side does not know, while parties may send their material to him alone first, after which he makes it available to both.
The limits of the judge-commissioner's powers showed up in the same decision. The request to have the other side stay enforcement of a judgment failed on his jurisdiction (para. 2.14), and the request for proof of funds lacked a basis (para. 2.15). Both parties were finally reminded that Section 190(3) DCCP obliges them to cooperate in the investigation, and that the Enterprise Chamber may draw such inferences from a failure to do so as it sees fit.
What does this mean for parties to a valuation?
The weight lies at the appointment. A party who wants a particular cut-off date, valuation standard or instruction asks for it then, and in a price determination by the Enterprise Chamber Section 2:343c(2) DCC opens that door. The scope of the instructions belongs there as well. In the Overijssel case a structural check calculation appeared in the expert's budget under the heading of exclusions. That the applicant later wanted that calculation after all did not help him: he should have raised it before the appointment became final.
Once the investigation is running there are two tracks. The first is to object at the time, about how a site inspection was run, about the presence of an adviser from the other side, about one-sided contact. A party who raises it only in a petition is met with the point that it said nothing at the time. The second track is the draft stage, which exists for this purpose: observations and requests, reasoned and copied to the other side, supported by an expert of one's own if wanted.
Where a party is considering a replacement, the question is what type of allegation it has. Three kinds engage the standard: an interest of the expert in the outcome, a lack of an open mind in carrying out the work, and an investigation resting on material the other side does not know. Dissatisfaction with the conclusions belongs before the court that decides the case. Once the final report is in, the route under Section 186(4) DCCP is closed, and what remains is whether it is plausible that the court on the merits would not have followed the report anyway. That is a high threshold, and deliberately so.
Frequently asked questions
Can an expert be recused like a judge?
The recusal regime applies to judges. A party may, however, ask the court to discharge the expert or appoint another, and the test resembles the recusal test: what matters is whether facts and circumstances could objectively give rise to an appearance of partiality. The requirement that the request be made promptly comes from the same source.
What happens to the deposit if a replacement is sought?
The sitting expert's fees are assessed and paid by the registrar out of the deposit lodged. In the Overijssel case that happened for almost €15,000 while the request for a replacement was still pending. A second expert calls for a fresh deposit, which under Section 187 DCCP is lodged by the claimant in principle, unless the court designates the other party or both.
May a party telephone the expert directly?
Practical coordination is fine; substantive communication outside the agreed channels is not. Written observations and requests go to the other side immediately in copy. The expert is moreover free to leave unsolicited submissions out of his investigation, and what he hears orally and does use he puts to the other party.
Cited case law
Supreme Court: ECLI:NL:HR:2011:BT2921 (9 December 2011, medical liability; a limited duty to give reasons for following or not following an expert, but the court must deal with specific objections that amount to a sufficiently reasoned denial, and where it does not follow the expert the ordinary requirements apply); ECLI:NL:HR:2007:AZ5448 (30 March 2007, a preliminary expert investigation must in principle be ordered; refusal is possible for offence to the proper conduct of the proceedings, abuse of the power, or another weighty objection).
Opinions: ECLI:NL:PHR:2011:BT2921 (advising that the judgment be set aside and the case remitted, whereas the Supreme Court dismissed the appeal; on the ground concerning the expert and the duty to give reasons the two ran together, the Advocate General holding those complaints unfounded at 2.23 and 2.25, and the difference lying in a ground about the duty to monitor); ECLI:NL:PHR:2007:AZ5448 (advising dismissal, which the Supreme Court followed).
Courts of appeal: ECLI:NL:GHAMS:2026:2669 (Enterprise Chamber, judge-commissioner, 17 September 2026, all requests of both shareholders refused; a request for discharge must be made as soon as the grounds are known and the petition must explain when that was, and facts arising after the cut-off date are left out of the valuation in principle); ECLI:NL:GHARL:2024:3855 (Arnhem-Leeuwarden, 11 June 2024, interim judgment, an expert who recommends his own firm for the follow-up inspection and the supervision has a commercial interest in the outcome; report set aside and a new expert appointed, without that falling to be borne by the party relying on the report).
District courts: ECLI:NL:RBOVE:2026:4038 (Overijssel, 30 June 2026, request for a replacement refused; Section 186(4) DCCP no longer applies once the final report has been received, and under subsection 5 it must be plausible that the court on the merits will not follow the findings); ECLI:NL:RBROT:2022:9481 (Rotterdam, 26 October 2022, serious objections upheld against an expert appointed by the Belgian court, principally on the appearance of partiality); ECLI:NL:RBAMS:2025:10553 (Amsterdam, subdistrict, 2 September 2025, oral interim judgment on hearing both sides in an expert investigation; the obligation is addressed to the court and the expert has a derived obligation, while the conduct of the investigation rests with the expert).