In the first of a series of articles on the court expert’s role in European jurisdictions, The Key sets the scene and looks at the position in France.
In general, Western legal systems (whether based on civil or common law principles) usually demand that the facts on which courts reach their judgment are proved by direct evidence. Generally speaking, this takes the form of evidence based on either contemporaneous documents or oral testimony given by witnesses who observed the events at the centre of the dispute.
Using expert witnesses
However, on occasions, the outcome will depend on a consideration of technical issues or accepted practice. In such cases, a court may hear evidence based on the opinion of expert witnesses to help it make a decision.
In the courts of England and Wales (in line with the British adversarial tradition), the parties have historically appointed their own experts. Usually, these are specialists who can, within the bounds of independent opinion, support the case advanced by the instructing party. The presiding judge then has to decide which opinion is more persuasive in the light of the facts of the particular case.
The potential for widespread abuse of the expert’s independence was recognised by the Woolf reforms of 1999, which limited
- the scope of the opinion to what was necessary and proportionate;
- the type of evidence that could be given and the issues that could be covered; and
- the number and types of experts that could be instructed.
The reforms also introduced the idea of an agreed or court appointed expert.
Tackling the expert’s findings
European civil jurists are comfortable with the concept of a court expert, whose role will often be crucial in determining the facts and liability. Indeed, the expert may well have completed their investigation of these two elements before the claimant raises a single allegation of fault against a defendant. So the litigant who fails to deal with the expert’s investigation in these circumstances will risk losing their case before they have even had a chance to argue it.
Claimants and defendants will also be making a mistake if they think their disclosure obligations will be limited to the documents on which they rely. A court expert may be authorised to require the parties to disclose any paperwork of relevance to the investigation. Usually, this will consist of documents that establish the facts or otherwise help the court to determine liability. The expert’s investigation will often be the key battleground, with the losing party being forced to rely on purely legal arguments in the final hearing in a bid to retrieve their position.
Structure of series
To provide a comparative framework, this series of articles will look at five aspects of court experts:
- how and where their evidence can be used;
- their appointment;
- how they carry out their job;
- the opportunities for challenging their evidence; and
- their remuneration.
As the French legal system is usually seen as the embodiment of the modern civil law system, the remainder of this article and its sequel will look at how things work in France.
Where and how expert evidence can be used
In France, judges are not practising avocats who have been promoted to the bench. It is a separate career path. In the Tribunal de Commerce, they are business people chosen from the local community. The courts’ inquisitorial approach makes the expert’s role central to the evidence-gathering process. It is for the judge to decide whether or not to appoint an expert.
The French courts use experts for three things (measures d’instruction):
- the constatation (i.e. an assessment, recording the facts and/or verifying the loss or damage, and which is usually ordered in straightforward cases);
- the consultation (where the facts are easily established, the court may only require an opinion on a technique or practice); and
- the expertise (i.e. a full investigation that is ordered in complex cases involving scientific, technical or other specialised issues).
In this first instalment of our coverage of the French system, we focus particularly on the last format of the court expert’s job – the expertise.
In common law jurisdictions, experts historically became involved when pleadings and disclosure were completed. In standard cases, the same approach is adopted in France. However, an expertise can be ordered before a detailed complaint is made against a defendant, on summary application to the juge des référés. There does not have to be an emergency before such an application can be made.
This summary procedure may be used to preserve or establish evidence.
It does not require an absence of serious dispute on the merits. It is not precluded by a serious dispute, as it does not involve prejudging the parties or the prospects of any subsequent proceedings. It is sufficient that:
- such subsequent proceedings are possible;
- there is a sufficiently defined purpose and basis to the application;
- the resolution of the case may depend on the summary expertise requested; and
- the application does not unlawfully infringe fundamental rights and liberties.
A summary application for an expertise can be made to the Tribunal Administratif, the Tribunal de Commerce and the Tribunal de Grande Instance. It can be challenged on appeal. However, a summary expertise cannot be ordered where there are extant legal proceedings dealing with the merits of the case in which an expertise has already been requested by the same claimant.
Examples of where this summary procedure might be used include the following:
- where a building defect becomes apparent;
- a turbine generator fails due to defect;
- industrial machinery fails with a possible risk of business interruption; or
- a supermarket or warehouse roof collapses in bad weather, suggesting defective construction or design.
On average, an expertise is normally concluded in 9-18 months. The findings will usually (but not invariably) be adopted by the court.
If the report does not implicate the respondent parties, the expertise can effectively kill off the case, as the claimant is very unlikely to sue. Conversely, if the report criticises the respondents, they may be prompted to reach a negotiated settlement.
The expertise proceedings close on the filing of the report.
If there is no need to invoke the summary procedure, the decision to order an expertise will be made at the hearing following the closure of pleadings. The judge may make the order at the request of one or more parties – which is the more usual course – or on his or her own initiative.
The next article will look at the procedural aspects of the expert’s investigation in France.