Experts are essential part of French legal procedure

WHEN dealing with maritime matters, and indeed in any dispute raising technical issues, French commercial judges often appoint court surveyors (experts judiciaires) to help them make decisions on cases involving questions of facts which require specialist knowledge. As such, the court survey is an essential part of French procedure, which must not be neglected by parties to litigation.

Necessity of the court survey

The discovery procedure, as understood in common law countries, does not exist in the French procedural system. Plaintiffs are only required to produce sufficient evidence for their action to succeed, without any obligation to disclose all the documents in their possession in relation to the dispute.

A hearing before a French commercial court lasts little more than two hours. In theory, oral evidence is admissible, and the judges have the power to order, at the request of a party or at their own discretion, the hearing of a witness of facts. In practice, this will seldom happen.

Judges in the French commercial courts are lay magistrates, i.e., elected local businessmen, whose knowledge and understanding of law, and in particular whose familiarity with maritime law and practice, may sometimes be non-existent.

Finally, maritime disputes often raise technical issues and usually require specialist knowledge which judges do not necessarily have. When there is no other possibility of establishing a fact alleged by a party, or when a judge considers that he does not have sufficient information in his possession in order to render a judgment on the merits, he may, at the request of one of the parties, or at his own discretion, decide to take specific measures (mesures d'instruction) such as personally deciding to investigate the relevant facts, order the hearing of witnesses of fact, or order a court survey.

The court survey (expertise judiciaire) is the most common and also the most effective means of enabling a party to establish the existence of facts on which it relies and to help the judge render a decision on the merits, taking into account all relevant factors.

As effective as the court survey may be in supporting the plaintiff's claim, it might equally prove to be a two-edged sword which may present some dangers unless the survey operations are handled with great care.

Importance of the court survey

In accordance with Article 232 of the French Code of Civil Procedure, the purpose of a court survey is to "enlighten" the court on a question of fact which requires the knowledge of an expert.

In order to enlighten the court, the court surveyor is "vested with the powers conferred on him by the court by reason of his qualifications" and must personally carry out the terms of reference given to him with "conscientiousness, objectivity and impartiality".

The court survey (expertise judiciaire) is the most common and also the most effective means of enabling a party to establish the existence of facts on which it relies and to help the judge render a decision on the merits, taking into account all relevant factors.

Court surveyors must give their opinion exclusively on the questions which they have been instructed to consider in their terms of reference and cannot deal with any other questions in the absence of the parties' agreement.

In any event, the court-appointed expert must never give a legal opinion, or reach conclusions of law.
The court-appointed expert's terms of reference, which can always be extended or restricted by the court, usually consist of assessing the causes of the casualty, the implications thereof, the extent of the damage thereby caused and, in certain cases, providing solutions and mitigating losses. Unless otherwise required by the court, court surveyors must also issue a report which describes in detail their investigations and findings of fact. In order to achieve this, they are granted relatively wide investigative powers.

There are no specific provisions in the French Code of Civil Procedure relating to the examination of witnesses. But the court surveyor is usually given the job - and in any event has the power - to hear any material witnesses during the survey meetings.

While court surveyors cannot compel a party to produce documents as such, they can request that a party provide any document which they consider necessary for them to pursue their terms of reference. In the event that the party should fail or refuse to produce the requested document, court surveyors may draw inferences in their report from such failure or refusal and/or apply to the court to have a party produce a specific document, if necessary subject to a daily penalty. In a perfect world, the survey report would enable the court to be 'enlightened' as to the true cause of the casualty and the implications thereof, and thereby to identify all the legal implications which flow from its findings of fact. This is not always the case. It is essential to bear in mind, however, that the findings of a court surveyor will, in most cases, be treated by the court as findings of fact, without any modification.

Because the findings of the court surveyor are extremely significant and may thus influence the outcome of a trial, it is essential for the parties, and in particular for the party who initiated the court survey, never to lose sight of the fact that the survey report will probably be accepted as conclusive evidence by the court.

Potential dangers
Nomination of the surveyor

Court surveyors are, in most cases, chosen from a court-approved list. The application to the court for a court surveyor to be appointed should normally be made by means of inter partes interlocutory proceedings (référé). If necessary, the application can be heard, and the appointment of the surveyor made within a few hours of the documents and instructions being received by the applicant's lawyer.

French courts will have jurisdiction to consider the application for the designation of a court surveyor whenever the survey operations are to take place in France, notwithstanding the jurisdiction of any other court or arbitral tribunal to determine the merits of the case.

It is also advisable to include in the application for the designation of a court surveyor all the parties against whom the survey report may be invoked.

The reason for this is that a court survey is only binding, in theory, on those parties designated in the initial order, leaving aside the possibility for the court to extend the court survey to additional parties during the survey operations.

It must also be borne in mind that anything said during a survey meeting will be noted down as evidence and may be used against a party. It is therefore advisable for the parties to be represented by their lawyers during the survey meetings and to ensure that they are given the opportunity to submit their views orally, or by means of subsequent written submissions.

As regards the costs of the survey, the party which applies to the court for the designation of a surveyor usually has to bear the surveyor's costs. These can vary with the type of survey and the extent of the investigations. Applicants will recover these costs provided they are successful on the merits.

Survey meetings

The court surveyor must always follow the principe du contradictoire (the principle of audi alterem partem). As regards survey meetings, court surveyors must invite all the parties to the matter to attend and be represented at their meetings. The purpose of such meetings is to gather all relevant information and documents and to hear any material witnesses of fact.

It is advisable that the plaintiff's lawyer ensures that all the parties have been invited to attend the survey meetings organised by the court surveyor. According to French case law, the survey report may well be declared not binding upon the party who has not been invited to attend each and every survey meeting.

It must also be borne in mind that anything said during a survey meeting will be noted down as evidence and may be used against a party. It is therefore advisable for the parties to be represented by their lawyers during the survey meetings and to ensure that they are given the opportunity to submit their views orally, or by means of subsequent written submissions.

Submissions

The parties may make submissions in writing on any aspect of the court survey at any time. It is also likely that court surveyors will indicate, at some point during the survey operations, what their conclusions are likely to be, and these will necessarily be adverse to one of the parties. At this stage, the purpose of this party's formal submissions will not so much be an attempt to persuade court surveyors to change their views, but rather to draw the court's attention to its own views.

Court surveyors are obliged to include all formal submissions made to them in such capacity and to respond to the submissions in their report. Although court surveyors are not cross-examined in court on their reports, such reports could be discredited if they fail to deal with submissions made on material aspects of their investigations. The reports would therefore lose credibility in the eyes of the court if submissions are ignored.

Bearing in mind the significant importance of the court survey, and in particular the fact that the court surveyor's findings of facts will be endorsed by the commercial court, a party should give very careful consideration, whenever it is likely that a court survey will be required, as to whether it should or should not initiate such a court survey. In any event, the parties to a survey procedure should ensure that they are represented throughout the survey operations to maximise their chances of obtaining a favourable report.