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Litigation in construction matters in France

1. Competent Court

French proceedings relating to construction litigation will generally come before the Tribunal de Grande Instance (or 'TGI' being the Higher District Civil Court of First Instance) which is geographically competent for the place at which the real property, which is the object of the suit, is situated.

It is mandatory to instruct French Counsel to appear on behalf of both French and non-French clients before the TGI as French Advocates have a statutory monopoly on rights of audience before this Court.

There are circa 154 TGIs in metropolitan France and a slightly added complication is that only Advocates called to the local Bar have rights of audience before their own Court.

Thus even French Advocates from other cities are required to appoint a local lawyer as a 'postulant' or agent for the duration of the proceedings; even if in reality the local lawyer does little more than add his or her name to Court submissions and filings prepared by the principal Advocate.

The larger TGI's would usually be made up of several 'Chambres' or Divisions dealing with different areas of French Civil law and there would generally be a particular 'Chambre' specialising solely in Construction Litigation.

It is perhaps self-evident to underscore the fact that the proceedings are held, and all documents and written evidence pertaining thereto must be drafted, solely in the French language.

2. Commencement of proceedings

In the majority of cases, the first procedural step in such matters would be for the plaintiff party to petition the TGI to appoint a judicial expert witness (see separate note regarding 'expertise' in the French sense).

To do so, the plaintiff's lawyer would draft a writ setting out the bare facts as well as the mission which he or she considered the Court should instruct the expert witness to undertake; for example to identify and establish the cause of the construction problem, to put forward possible technical solutions, to put a financial figure on the cost of repair or reconstruction, to put a figure on the financial losses suffered by the plaintiff and to provide the Court with evidence permitting it to apportion liability.

This writ would be served upon all the various parties concerned viz. not only those who may or may not be held liable directly, but also their insurers and sometimes their sub-contractors and suppliers.

The service would be carried out by a Huissier de Justice (being a sworn bailiff and process server and this is a standalone legal profession in France).

In essence, good service is deemed to have come about if the document is simply presented or left at, say, the reception desk of the registered office of a company which is being drawn into the proceedings by the Huissier de Justice. Personal service upon a duly authorised executive is not usually necessary. There is therefore no useful purpose in trying to avoid service as the proceedings will usually move forward and be held to be binding upon all the parties if the Huissier de Justice provides a statement that he presented himself at the company's registered office with the writ.

Instead, it is generally considered in the interests of each of the parties concerned to accept service and then immediately to scan and send on a copy of the writ to its own lawyer.

The same general thought would apply to documents or papers sent by recorded delivery mail. It is not generally possible in France to avoid service or notification of this nature by refusing to accept or to sign for a recorded delivery or registered letter. The Courts would hold that the documents or papers had in fact been regularly notified to the party in question as from the day and date at which the French Post Office presented the letter at the address in question for the first time.

Again, it is generally considered advisable for each of the parties concerned to accept recorded delivery and registered letters and immediately to scan and send on a copy of the contents to its own lawyer.

3. The 'expertise' phase

This is a vital part of litigation, particularly in construction matters, in France; but many non-French litigants fail to grasp its importance and will often lose a major case by dint, generally for business cultural reasons, of not taking this phase into proper account.

The Court appointed expert witness is held to be totally independent of the parties and is considered to be the 'eyes and ears' of the Court.

His or (much more rarely) her final written report and opinion will be held to be binding on all the parties and in the very great majority of cases will be followed by the Court in its judicial decision.

It is therefore vital, particularly for the defendant party or parties, to take very seriously indeed this phase of the proceedings and to ensure that they and their lawyers participate fully and actively at this stage.

4. Proceedings on the merits

It is important, and please forgive us for insisting again on this issue, to take on board the fact that the overwhelming majority of proceedings brought in the field of construction litigation will commence by the 'judicial expertise' phase.

Thus, the Court seized of the claim on the merits will have before it, right from the start of the proceedings, the final version of the report handed down by the judicial expert appointed by the same Court and will virtually always rely solely upon this report in regard to the technical issues of the case.

In other words, it will be usually be too late to raise or challenge any technical issue during the full Court proceedings on the merits.

It is also very important to note that there are no juries in civil trials in France and moreover there is no concept of oral cross-examination of witnesses (or the parties) comparable with that practised before most common-law jurisdictions.

Instead French litigation is very much based upon the exchanges of written submissions between the parties; and the Court will ensure that all the parties receive copies of all the pleadings and evidential documents exchanged between the various parties.

The phase of exchanges of written submissions and documentary evidence will often last for a period of between 6 and 24 months and only after all the parties consider that they have communicated all their arguments and written evidence will the Court set a date for trial.

Within the TGI, and particularly in construction matters, a Judge known in French as the "Juge de la mise en Etat" will be appointed to manage the case. He or she will grant a series of adjournments to the parties over a period of months in order to permit the drafting and filing of written submissions. The "Juge de la mise en Etat" will, importantly, set a procedural timetable to attempt to ensure that the case continues to move forward to trial. This Judge will thus supervise the procedural exchanges between the parties' lawyers and will sometime hand down an injunction against one of the parties if its submissions have not been filed on time.

Prior to setting a trial date, the Court, in the person of the "Juge de la mise en Etat" will set a "date de clture" being a closure date, generally some weeks before the trail itself, after which no further submissions or evidence may be communicated between the parties.

The nature of the trial hearing itself often surprises many non-French litigants in that a major matter, sometimes with millions of Euros or Dollars at suit, may be dealt with in full, with all the lawyers being heard, in some two hours or so.

There is thus very limited oral advocacy and no cross-examination at the full trial hearing and the Court and the parties would tend generally to rely upon the written submissions exchanged during the preliminary phase of the proceedings on the merits.

It is very rare for a French Court to hand down a judgment immediately following the trial hearing and it will usually reserve its decision for a matter of weeks (if not months) after the hearing.

5. Miscellaneous points

These notes do not set out to be exhaustive and should not be relied upon without taking formal and specific advice from a duly trained and qualified French attorney; however the following general points may also be of interest to non-French litigants and their lawyers.

5.1 Language

English is not used in the French Courts or in written submissions and documentary evidence.

There is usually no provision whatsoever for translation or interpretation of the proceedings at civil hearings dealing with construction litigation, which will be solely in French, and there is no perceived need in this respect.

It will also usually be necessary for all written submissions and documentary evidence to be translated into French by a sworn translator approved as such by the French Court of Appeal. It would not be overstating the position to suggest that there is some resistance to the use of English in France.

Moreover, the number of lawyers who are able to understand, speak and write technical legal English at an appropriate professional level is very limited indeed.

5.2 No transcript

There is no recording and no transcript, for example taken by a stenographer, of proceedings in France and thus no record of the proceedings, distinct from the written judgement, which may be relied upon by the parties in the future, at appeal for example.

5.3 Court costs

Costs do not generally follow the action in France and thus the losing party in French construction litigation will not generally be ordered to pay the full costs of the parties which obtained a decision in their favour.

However, the losing party will nevertheless often be ordered by the Court to reimburse the disbursements of the winning party and this head would usually include the judicial expert's costs and honoraria.

Furthermore, if the TGI orders the losing party to pay to the other side the Court costs (known as the "frais et dpens" in French) then this would include an award known as the "tat de frais" which follows a somewhat complex calculation but in essence is a percentage of the amount at suit.

In addition, there may be a general award against the losing party under article 700 of the French Civil Procedural Code which is not proportionate to the amount at suit.

5.4 Judicial recourse

The TGI is a Court of first instance and its decisions are open to appeal which may be lodged before the Cour d'Appel which is competent geographically.

No prior authorisation is necessary and virtually all decisions may automatically be appealed.

Decisions of French Courts of Appeal are also open to appeal before the Cour de Cassation which is France's Supreme Court.

Although no prior authorisation is necessary by the Court of Appel and thus virtually all decisions may automatically be appealed before the Cour de Cassation, there is an initial filtering process as the French Supreme Court will only consider points of law and will not examine points of fact which are solely within the scope and discretion of the lower Courts.

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