Repeat vs. additional examination: when and how they differ

A party unhappy with the first expert opinion usually asks one question: should we challenge the examination, or commission a new one? Procedural law offers two distinct tools for this — an additional examination and a repeat examination. Confusing them is a common and costly mistake: choose the wrong motion and the court simply rejects it, while the time for gathering evidence is already gone. Let us look at when each one applies, how they differ from the original examination and from each other, and how to frame everything properly — from the standpoint of forensic economic examination, where the price of this mistake is especially high.

Original, additional, repeat: three different things

The original (primary) examination is the study carried out in a case for the first time on the questions posed. Once its opinion exists but fails to satisfy a party or the court in some way, a choice opens up between two paths.

• An additional examination cures the incompleteness or lack of clarity of an existing opinion. The opinion itself is not called into doubt — it merely needs to be supplemented or explained.
• A repeat examination is ordered when there are doubts about the correctness of the opinion, its lack of substantiation, or contradictions. Here the point is no longer to supplement, but to conduct a new, independent study of the same questions.

This logic is uniform across all types of proceedings. It is fixed by the procedural codes: Article 113 of the Civil Procedure Code of Ukraine (TsPK), Article 107 of the Commercial Procedure Code of Ukraine (HPK), and Article 111 of the Code of Administrative Procedure of Ukraine (KAS). In criminal proceedings, a court’s appointment of an examination is governed by Article 332 of the Criminal Procedure Code of Ukraine (KPK), which separately covers the situation where the opinions submitted to the court contradict one another. The grounds and the distinction are detailed by the sector-specific Instruction on the Appointment and Conduct of Forensic Examinations and Expert Studies, approved by Order of the Ministry of Justice of Ukraine (Minyust) No. 53/5, while the status and competence of an expert are defined by the Law of Ukraine “On Forensic Examination”.

For economic examination this context is felt especially keenly: it is often ordered in disputes with the State Tax Service (DPS), in proceedings of the Bureau of Economic Security (BEB), or in cases connected with financial monitoring (the State Financial Monitoring Service, Derzhfinmonitoring), while the system of state expert institutions is coordinated by the Ministry of Justice.

Additional examination: when the opinion is incomplete or unclear

An additional examination is ordered when the previous study is broadly correct, but its result does not give a full answer. Classic situations:

• the expert did not answer every question posed;
• the answer is phrased vaguely and can be read two ways;
• new circumstances or documents have appeared that require further analysis within the same subject;
• clarifying questions need to be posed that follow logically from the opinion already given.

An important nuance: if the lack of clarity can be removed by simply examining (questioning) the expert, a separate examination is not needed — that is the faster and cheaper route. An additional examination is ordered only when oral clarifications are not enough and a genuine new study within the existing subject is required.

Who is assigned to it

An additional examination may be carried out by the same expert who conducted the original one (since they are already immersed in the materials), or by another expert — at the court’s discretion. Confidence in the first specialist’s qualifications has not been lost here, so the law does not prohibit leaving the study with them.

Repeat examination: when there are doubts about correctness

A repeat examination is a step of a different nature. It is ordered when the result itself is called into question:

• the opinion is unsubstantiated or conflicts with other evidence in the case;
• there are contradictions within the opinion itself, or between the opinions of several experts;
• a breach of methodology has been found — incorrect approaches or input data were applied;
• the expert went beyond their competence or studied the wrong documents.

In essence, a repeat examination answers the same questions as the original one afresh — but now through other specialists, in order to obtain an independent check.

Who is assigned to it

Here the law is unambiguous: a repeat examination is assigned to another expert or a panel of experts. Whoever performed the original study may not conduct it — otherwise the whole point of the check is lost. In practice, it is precisely the panel format (two or more experts) that adds weight to the opinion when the stakes in a case are high.

The key differences — in brief

Criterion	Additional examination	Repeat examination
Ground	Incompleteness or lack of clarity of the opinion	Doubts about correctness, lack of substantiation, contradictions
Attitude to the original opinion	Supplements, does not refute	Re-checks anew, may refute
Scope of questions	New / clarifying, on the same circumstances	The same questions as before
Who is assigned	The same or another expert	Only another expert / a panel
Purpose	Close a gap	Obtain an independent check

Who initiates a new examination, and how

Both sides hold the right of initiative: a motion may be filed by any participant in the case — claimant, defendant, victim, the defence or the prosecution. In addition, the court may order an additional or repeat examination on its own initiative if it sees gaps or contradictions in the opinion.

The crucial point: mere disagreement with the result is not a ground. The court will grant a motion only if the party substantively proves the incompleteness, the lack of clarity, or the well-founded nature of the doubts. That is why the quality of the reasoning in a motion often matters more than the fact of filing it.

A review of the opinion as a preparatory step

Before filing a motion, it is worth commissioning a review of the existing opinion from another qualified expert. A review is not a new examination but a professional assessment: was the methodology observed, are the study data complete, are the conclusions logical? It helps to:

• understand which tool is appropriate — additional or repeat;
• state the grounds in the language of methodology rather than emotion;
• back the motion with a document the court takes seriously.

How to draft the motion: step by step

1. Decide on the type. First, assess honestly: does the opinion need to be supplemented (additional), or are you calling its correctness into doubt (repeat)? All of the reasoning follows from this.
2. Formulate specific grounds. Not “we disagree”, but concretely: which questions were left unanswered, where the contradiction lies, which methodology was breached, which new documents have appeared.
3. Attach evidence of the grounds. This may be a review of the opinion, a reference to a regulatory methodology, new primary documents, explanations of arithmetical or logical errors.
4. Propose questions for the expert (see below).
5. List the materials that should be provided to the expert for the study.
6. State the desired expert institution or format (a panel — for a repeat examination in complex cases).

How to frame the new questions

The questions are the heart of the motion. A few rules I apply in my own expert practice:

• pose questions within economic (or other relevant) competence — the expert does not decide legal questions and does not establish guilt;
• phrase them specifically and verifiably, tied to documents and periods;
• for a repeat examination, the questions are, as a rule, the same as in the original, so that results can be compared;
• for an additional examination, use clarifying questions that close precisely the gap;
• avoid questions whose answer is already in the materials or is plainly a legal one.

Typical mistakes by the parties

• Confusing additional with repeat. They ask for “another expert” when in fact only a supplement is needed — and vice versa.
• Criticising the expert instead of moving for a repeat examination during argument, without filing a procedural document.
• Failing to specify grounds. “The opinion is wrong” without explaining exactly how is almost always a losing bet.
• Skipping the simpler route — questioning the expert, when oral clarifications would suffice.
• Posing legal questions to an economic expert (for example, asking them to assess the “lawfulness” of actions) — the court rejects such questions.
• Delaying. A motion filed too late without valid reasons may be rejected by the court.

Two generalised situations from practice

Situation 1 (additional). In a debt-recovery case, the expert calculated the amount owed but did not take into account part of the payment documents that the party submitted after the study had begun. The opinion is correct in substance, merely incomplete — the logical move is a motion for an additional examination by the same expert, asking them to study the new documents.

Situation 2 (repeat). In a tax dispute (for example, following a DPS audit) the opinion contains an internal contradiction: the analytical part uses one method of calculating the tax liability, while the conclusion uses another, and the figures do not add up. This is already a doubt about correctness — a ground for a repeat examination, which is best assigned to another expert or a panel.

In short

Additional is about completeness; repeat is about correctness. The first supplements the opinion and may stay with the same expert; the second re-checks it afresh and is assigned only to another specialist or a panel. In any event, the winner is not the one who disagrees the loudest, but the one who has substantively justified the grounds and framed the questions well.

If you have doubts about the opinion in your case, or you are preparing a motion for a repeat or additional economic examination, get in touch for a consultation. Together we will assess which tool is appropriate and frame the questions so that they work toward the result.