The court-ordered survey

In France, it is not uncommon for a party to ask for a court-ordered survey before a dispute arises. The so-called summary proceedings for an “expertise judiciaire” are a procedure to appoint a surveyor (“expert judiciaire”) with an assignment determined by the court. The rules for such a survey are laid down in articles 263 through 284-1 of the Code of Civil Procedure. The court-appointed surveyor must be objective and impartial, and he must ensure that all parties are entitled to express their position and receive the documents that inform his view.

A court-ordered survey usually precedes proceedings on the merits and serves the purpose of gathering evidence when there are complex technical issues at play that the court cannot rule on without an expert view. This is often the case in construction cases, but also in the industrial field (e.g. malfunctioning machines, or fire), in agriculture etc.

In such cases, the court usually does not have the technical knowledge to decide the case. The point of view of a surveyor can thus help resolve such disputes.

How does such a court-ordered survey work in France?

The survey process

Once a surveyor has been appointed by the court, he must schedule a meeting to examine the issue at hand and to debate the possible causes.

Usually, at least one meeting is organized on site to allow the surveyor to examine the situation.

In the course of the survey the surveyor may ask questions, request documents and in general do what he thinks is needed to find the cause of the problem. The parties may also suggest certain investigations to the surveyor. Sometimes a laboratory may be used to carry out tests, if that is warranted by the questions that have arisen during the proceedings.

The survey should regularly report on the progress of the survey and the various possible causes he is investigating. The parties can respond by means of written remarks known as “dires.” This may lead to a technical debate and exchange of views between the parties and the surveyor.

In some cases, a financial expert is appointed to assist the surveyor. In such cases, the latter investigates the root cause of the problem, whereas the former assesses the damages, based on the claim that is put forward.

In court-ordered surveys the parties are assisted by their lawyers and often also by their own technical and/or financial expert. Good cooperation between the party, their lawyer, and their own technical expert is essential to ensure that the survey leads to a good result, which is important because the surveyor’s final report will often determine the outcome of the dispute.

Once the survey is over

When the surveyor knows enough, he issues his final report. This report is submitted to the parties and to the court.

The survey process may then be followed by proceedings on the merits, initiated by the party that seeks compensation for the damages that it has suffered.

Although the court is not formally required to follow the surveyor’s technical analysis, in practice it is rare for the court to disregard an expertise report from a court-appointed surveyor. The surveyor’s technical conclusions are usually decisive for the court’s decision.

It is therefore of great importance to take the court-ordered survey seriously.