Judicial expertise is a procedural measure that is widely used in France, before legal actions, for technical aspects (investigation on the causes and extent of a claim) and financial aspects (drawing up accounts between the parties), rather than amicable expertise.
When a dispute raises technical issues that require in-depth analysis, the judge may, at the request of the parties, appoint a person of his choice to provide him with findings, consultation, or expertise report (Article 232 of the French Code of Civil Proceedings “CPC”). If findings or consultation would not be sufficient to assist him or her, the judge may order judicial expertise (article 263 of the CPC).
Judicial expertise is an investigative measure entrusted by the judge to a judicial expert, before the Courts of appeal or the High Court (Cour de Cassation), to carry out complex investigations, to provide the judge with technical explanations on the matter, enabling him/her to settle the dispute.
There are judicial experts in a wide variety of disciplines (medicine, accidentology, chemistry, mechanics, etc.).
The French system is close to that found in Belgian legal proceedings. It is however very different from the system in force in the Netherlands, which favors the personal appearance of the parties before the judge, who will then question them.
It is important to note that even if the judge having jurisdiction on the merits is not the French judge, the latter will in principle retain its jurisdiction in the context of summary proceedings for judicial expertise. The European Union has confirmed that the French judge is indeed competent, regardless of the judge having jurisdiction on the merits, to order provisional measures (Article 35 of Regulation n° 1215/2012 of 12 December 2012).
1. The court decision ordering the expertise
Expertise proceedings may be ordered before any trial or during the proceedings. In most cases, it is requested and ordered before any trial to preserve evidence of facts that the claimant wishes to establish, in the form of summary proceedings.
In its decision ordering the expertise, the judge sets out the circumstances that make it necessary, appoints the expert, states his or her mandate and specifies the delay within which the expert must give his or her opinion (Article 265 of the CPC).
The summons for summary proceedings interrupts the limitation period of the claimant’s action until the final report of expert is filed (Article 2241 CC). The other parties should take necessary precaution to interrupt any running limitation period as well.
When ordering the expertise, the court shall fix the amount of the provision of the expert’s fees (Article 269 CPC), which shall in principle be paid by the Claimant.
Active participation in the summary proceedings and particularly during the hearing is essential to secure the mandate entrusted to the expert and, if possible, the competence of the expert who will be appointed.
2. Parties participating in the expertise
Despite its technical nature, expertise is a judicial act subject to the rules of civil proceedings. In particular, it must respect the principle of adversarial proceedings (Article 16 CPC). In practice, this means that the expertise operations and the exchanges with the judicial expert must take place in the presence of all the parties to the dispute.
The claimant will involve all the parties whose presence he deems necessary for the case (e.g. all the participants in a contractual chain) so that the expertise report is also opposable to them.
For its part, the defendant must ensure that he involves all the parties against whom he could have a claim. If he fails to do so, he will be unable to invoke the expert’s technical conclusions against the parties who were not party to the expertise not been. This can be very problematic for the legal discussion that will take place after the report is submitted.
It is also common practice for parties to request to participate voluntarily in the expertise so that they may make requests for technical and/or financial verifications and/or to defend their point of view.
3. Expertise operations
The court expert generally begins his mission by summoning all the parties as well as their lawyer to the site of the claim.
During the first meeting, the expert shall assess on site the extent of the damage alleged by the claimant. He will then be able to formulate preliminary hypotheses on the possible causes of the damage. The parties present may also draw the expert’s attention to certain points or make initial observations or reservations orally.
The expert may hold as many expert meetings as he deems necessary, to make additional findings, to involve a sapiteur (expert in another specialty), to carry out technical tests at the site. All the parties and their lawyer will systematically be summoned.
The court expert communicates with the parties’ lawyers through “Notes”, in which he summarizes all the points that have been raised and discussed. He also transcribes the parties’ observations and submissions.
The lawyers of the parties communicate with the court expert, by means of “Dires”, in which they officially state their client’s position, require an explanation from the court appointed expert, request additional investigations, the provision of documents by a party… The Dires may be accompanied by documents or technical notes, drawn up by independent technical experts who usually assist each party alongside his lawyer.
4. The opinion of the court appointed expert
At the end of his operations, the court appointed expert generally shares a pre-report, in which he gives his opinion on the various points of his mandate and seeks the last observations of the parties before submitting his final report to the court (Article 282 CPC).
It is important to note that a pre-report is not mandatory if it the mandate does not mention it, which can lead to the (bad) surprise of receiving a final report when the parties may feel that not everything has been discussed. It is will then be too late, because of the fact that as soon as the judicial expert submits his report, he is removed from the case.
The parties will then no longer be permitted to submit observations or challenge the expert’s opinion in any way. They will certainly be able to challenge the expert’s conclusions in their submissions before the court, but will no longer be able to request further investigations.
Although the conclusions of the judicial expertise are not binding on judges, in practice they will often respect the expert’s opinion. For this reason, it is essential to be represented by a lawyer during the expertise procedure.
Amstel & Seine has extensive experience in the field of judicial expertise. Our lawyers will be able to assist you from the stage of the summary proceedings, in the drafting of Dires and accompany you throughout the expertise meetings. Moreover, the bilingualism of our lawyers in Dutch ensures the clarity of the exchanges, sometimes technical, between you and the expert. Valérie Judels and Marinka Schillings (Litigation Lawyers) will be your dedicated lawyers at Amstel & Seine for all your judicial expertise proceedings.
Paris, June 2nd 2020