Diego Henrique Gonçalves
Lawyer at Marcos Martins Advogados
In the Labor Courts, there is no legal provision obliging the parties to make prior deposits for expert opinions. However, forensic practice is increasingly adopting this approach.
It so happens that this type of determination, which is commonplace in the first instances of this Specialized Justice, has already been deemed illegal by the Superior Labor Court, which issued Jurisprudential Guideline No. 98 (SDI II). In addition to declaring the requirement for a prior deposit to be illegal, this O.J. also allowed a writ of mandamus to be issued for an expert to be carried out without any payment in advance, in verbis:
98. WRIT OF MANDAMUS. APPLICABLE TO ATTACK THE REQUIREMENT OF A DEPOSIT IN ADVANCE FOR EXPERT FEES (new wording) – DJ 22.08.2005
The requirement of a prior deposit to pay expert fees is illegal, given its incompatibility with labor proceedings, and a writ of mandamus can be filed to ensure that the expert opinion is carried out, regardless of the deposit.
The aforementioned illegality is supported by the text of article 790-B of the CLT, which states that “the responsibility for payment of expert fees lies with the losing party in the claim that is the subject of the expert opinion, unless they are beneficiaries of free justice”
In turn, Normative Instruction No. 27 of the TST, in its article 6, repeats the aforementioned text, adding an important piece of information in its sole paragraph, which reads as follows: “The judge may, in relation to the expertise, require a prior deposit of the fees, with the exception of disputes arising from the employment relationship”.
Therefore, it can be concluded that the payment of expert’s fees, as a rule, will always be borne by the losing party in the expert’s case, with the judge only having the option of ordering that this amount or part of it be paid in advance, provided that the dispute is not an employment relationship.
A court order that does not comply with these conditions can be challenged by means of a writ of mandamus, in accordance with the aforementioned Jurisprudential Guideline no. 98 followed by our courts, as can be seen in the decision below:
“Prior deposit of expert fees. Offense against liquid and certain rights. Labor legislation does not make the performance of an expert’s opinion conditional on the prior deposit of fees. Under the terms of art. 790-B of the CLT, the responsibility for the fees lies with the losing party. This definition leads to the conclusion that the respective payment comes after the technical work has been carried out. The sole paragraph of article 6 of Normative Instruction 27/2005 of the TST prohibits the requirement of a prior deposit “in disputes arising from the employment relationship”. This understanding has already been summarized by the Higher Labor Court, according to OJ 98 of SDI-II.” (TRT-2 – MS: 7438008120125020000 SP 07438008120125020000, Rapporteur: SERGIO WINNIK, Date of Judgment: 04/23/2013, SDI TURMA, Date of Publication: 05/09/2013)
However, despite the clarity of the law and case law on the subject, there are two opposing views that defend the possibility of determining the deposit of prior fees even if the relationship in the case is one of employment.
The first is based on the principle of aptitude of proof, according to which the burden of proof falls on whoever is best able to produce it. It follows from this principle that it will always be up to the defendant to prove that its activity is not unhealthy, dangerous or harmful to the worker’s health. In this sense:
WRIT OF MANDAMUS – REQUIREMENT FOR PRIOR DEPOSIT OF EXPERT FEES – LEGALITY – PRINCIPLE OF APTITUDE FOR PROOF OR FAIR DISTRIBUTION OF THE BURDEN OF PROOF. The burden of proof lies with those who allege (art. 818 of the CLT), but this rule is not absolute, as the principle of aptitude for proof or fair distribution of the burden of proof applies, according to which the burden of proof lies with those who are best able to produce it. Therefore, when the activity is classified as unhealthy or dangerous under MTE Ordinance 3.214, it is up to the company to prove otherwise. Therefore, I do not see any illegality or abuse of power in the hostile act. (TRT-22 – MS: 124201000022005 PI 00124-2010-000-22-00-5, Rapporteur: FRANCISCO METON MARQUES DE LIMA, Date of Judgment: 28/07/2010, PLENO TRIBUNAL, Date of Publication: DJT/PI, Page not indicated, 18/8/2010)
Another understanding that supports the legality of the prior deposit of fees is based on the idea that Jurisprudential Guideline No. 98 only applies when the party is a beneficiary of free justice, whether employee or employer. In the absence of the benefit condition, the prior requirement of the deposit is legal. This understanding prevailed in the judgment of Writ of Mandamus No. 00482-2009-000-05-00-7-MS by the Regional Labor Court of the 5th Region. In this judgment, the Honorable Reporting Judge, Margareth Rodrigues Costa, declared illegal the judicial order issued by the judge of the first degree that obliged the deposit of these amounts in advance. However, the prevailing opinion was that of the Honorable Judge Edilton Meirelles, who ruled as follows:
“It is true that the grammatical interpretation of OJ 98 of the SDI of the TST leads to the conclusion that the requirement of a prior deposit to pay expert fees is incompatible with the labor process in any case. However, in a teleological interpretation, we can actually conclude that this understanding is based on the assumption that the party requesting the expert evidence or the one who bears the burden of paying the deposit in advance is the party benefiting from free assistance or even the worker who does not benefit from this procedural advantage. This is because it is not at all incompatible with the labor process to require employers who do not benefit from free legal aid to make a deposit in advance of the expert evidence. This requirement, in fact, follows the same line as the appeal deposit requirement, in which the company, in advance, when filing the appeal, advances funds to guarantee future enforcement. The question is, is it incompatible with a labor claim to require a large bank to make a deposit in advance to cover the cost of expert fees? Obviously not, since such a measure in no way creates an obstacle to the provision of justice in its substance. It seems to us, therefore, that the requirement for a deposit is only incompatible with the labor process when it is made in relation to the worker, given their weak condition in the material law relationship, with repercussions on the process. From the point of view of the defendant-company, there is no justification for not requiring the prior deposit, and there is no incompatibility with the labor process “ ( emphasis added).
For all the above reasons, it can be concluded that the requirement of a prior deposit for fees lacks express legal backing and also contravenes various legal provisions such as article 790-B of the CLT and article 6 of Normative Instruction 27 of the TST. However, case law has been finding ways to support the legality of these determinations in order to allow experts to have access to amounts right at the start of the process, thus being able to cover initial expenses for carrying out the expertise.
