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French law concept of “Expertise”

The French law word ‘expertise’ used in a French litigation context should not be confused with same word in English meaning a high level of knowledge or skill.

Instead, the French word ‘expertise’, particularly within the context of construction litigation, describes principally a procedural process of judicial, but civil, investigation ordered by the Court which is a vitally important part of any trial proceedings; either as a necessary preamble or during the trial itself.

The word ‘expertise’ is also used in a French construction law context to mean a civil investigation or assessment undertaken by an ostensibly independent expert in the particular field outside (but possibly prior to) judicial proceedings which process is somewhat akin, at least in part, to the function of a loss adjuster.

Expertise judiciaire (or judicial assessment)

At the inception of French litigation, and generally prior to commencing full proceedings on the merits of the claim, one of the parties, usually the plaintiff, will often petition the Court to appoint an independent expert witness who is specialised in a particular field.

The modality of petitioning the Court to appoint an expert technical witness is carried out by the plaintiff’s lawyers arranging the service of a writ (via a French Huissier de Justice or sworn bailiff/process server) summoning all the parties to appear before a Court at a summary hearing.

At the hearing, or generally shortly thereafter, the independent expert witness, known simply as an ‘expert’ in French, will usually be chosen by the Court of First Instance from a pre-established list, held and updated by the territorially competent Court of Appeal, of qualified and approved professionals in a specific technical area.

In the preliminary decision in which the Court of First Instance names the expert it has appointed, it also, perhaps more importantly, sets out the scope of the mission to be undertaken by the expert.

The mission fixed by the Court might be something along the lines of “establish and identify the cause of the difficulty, put forward if appropriate one or more possible technical solutions, provide the necessary information to the Court in order to apportion liability, evaluate the financial loss and/or the cost of rectifying the problem”.

It is vital to note that, once appointed by the Court, all of the assessment and investigatory work undertaken by the expert, and in particular his final report, will be binding upon all the parties; whether or not they contribute fully or at all to the process.

In most instances, the parties would tend not to appoint their own external technical experts in the manner often encountered in common-law jurisdictions, but would rely instead on their in-house resources from a technical perspective and upon their external lawyers on the legal front.

Moreover, even if the parties were to appoint their own technical experts, it would not generally be possible to challenge the content or technical conclusions of the Court appointed expert’s report at the trial or indeed once his report has been remitted to the Court.

In practical terms, the expert, duly appointed by the Court of First Instance, will summon all the parties, and their lawyers, to an initial meeting by recorded delivery letter or the like.

At this meeting, the expert will set out his agenda for the ‘expertise’ or exploratory investigation indicating the technical points and areas he would wish to cover and setting out a timetable for future meetings and/or site visits.

It would not be unusual for such expert proceedings in a construction context to last from 6 months to two or more years at the upshot of which the expert would remit his final report to the Court.

The Court would then virtually always rely solely upon the conclusions of the expert’s report in deciding upon the apportioning of blame and liability as well as on issues of financial loss and cost of repairs for example.

It is considered to be too late for any of the parties to introduce new technical evidence or challenges to the expert’s conclusions at the trial per se and it would be circumspect for any non-French party drawn into such proceedings in France to consider that the ‘expertise’ is a full part of the Court proceedings.

Thus, the expert should be treated with respect as the ‘ears and eyes’ of the Court and the moment in time whence facts and evidence may be introduced is solely during the ‘expertise’ procedure and it is vital that non-French entities grasp this nuance.

Expertise amiable (or amicable assessment)

In addition to, but separate from, the Court appointed expert system; it is also common practice in France for an ‘expert’ to be appointed by one of the parties, often by the insurance company of the principal plaintiff.

Considerable circumspection is though necessary as the use of the same words ‘expertise’ and ‘expert’ in this context are often understood, mistakenly, by non-lawyers and/or non-French parties to mean that this essentially private and intra-partes process has some sort of official stamp of authority.

However, it is made clear that on the one hand the ‘expert’ in this context does not have the authority of the Court and on the other hand he could not reliably be described as being independent having been appointed by one of the parties with a clear financial interest.

This private ‘expertise’ process nevertheless is sometimes considered by certain undertakings in France to constitute a short cut to a less costly settlement without the need to commence proceedings.

Although the parties to any dispute are not obliged to take part in such an ‘expertise amiable’ it is nevertheless circumspect to do so; either to be able to participate in an overall settlement between all the parties if that is in their interest or for example to be able to establish the strength of the case or arguments of the other parties should the matter be taken before a Court at a later stage.

That said any written or even oral statements made during this ‘expertise amiable’ could be used for or against any of the same parties in the event that a settlement were not deemed possible and litigation were enjoined. It is though made clear that an ‘expert’ appointed in this intra-partes process may in no circumstance be subsequently appointed as a judicial expert by the Court in the same matter.

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