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NEWSLETTER : Expert evidence in France and Germany N° 4/2021

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Pre-trial expert opinion and legitimate reason

Both French and German civil procedure rules allow, under certain conditions, for a judicial expert report to be obtained even before the opening of proceedings on the merits. In both countries, one of these conditions is the existence of a legitimate reason. However, this notion is not defined in the same way in the two legal systems. Some recent examples in case law illustrate this criterion.

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The purpose of pre-trial expert opinion (expertise in futurum) in France : obtaining evidence for future litigation

Article 145 of the French Civil Procedure Rules (Code de procédure civile) provides: “If there is a legitimate reason to preserve or establish, before any trial, the proof of facts on which the solution of a dispute may depend, legally admissible investigative measures may be ordered at the request of any interested party, either in non-adversarial safeguard proceedings or in summary proceedings. »

Such a pre-trial measure may include obtaining an expert opinion. French civil procedure has thus created the possibility of verifying, before any action is brought, whether there is relevant evidence and whether the envisaged action has sufficient chances of success. However, it is necessary to be able to demonstrate the existence of a legitimate reason, which is not always easy, as the following decisions of the French Supreme Court (Cour de cassation) show.

A first decision (24 June 2020, n°18-17104) concerned an expert report on the management of a company (“expertise de gestion”). This tool, provided for in Article 225-231 of the Commercial Code, enables minority shareholders to obtain information on the company’s management. The expert had not been able to carry out his mission properly because the company had refused him access to certain documents. However, the expert report had revealed irregularities in the company’s management. The minority shareholder then requested that the same expert be appointed, this time based on Article 145 CPC.

The Court of Appeal (Cour d’appel) rejected this request for lack of legitimate reason, considering that the applicant’s aim was to obtain documents that he had not been able to obtain in the context of the first expert opinion. However, as the Court pointed out, the two expert reports have different objectives : the management report aims to inform the minority shareholder, while the pre-trial expert report has an evidential interest.

The Cour de Cassation overturned this decision : in order to determine whether there was a legitimate reason, the court of appeal should have examined whether the expert opinion that was requested was not possibly justified by the prospect of a potential liability action with regard to the company’s failing management.

In its decision of 10 December 2020 (No. 19-22-619), however, the Cour de Cassation did not recognise the existence of a legitimate reason : again, the case concerned a minority shareholder who had doubts about the regularity of the management of his company. He requested an expert opinion based on Article 145 CPC, but his request was rejected in all instances. No legitimate reason was apparent, as the claimant did not present any concrete indication for his allegations. Thus, the rise of a dispute appeared to be excluded.

Yet the claimant had stated that he was considering bringing a liability claim against the company. He felt that it was impossible to substantiate his allegations in more detail, as the evidence he was asked to submit was precisely supposed to be provided during the future expert’s investigation.

This did not convince the Cour de Cassation, which stressed the following fundamental principles:

  • The assessment of the legitimate reason criterion is left to the discretion of the court.
  • The presumptions to be established must be based on concrete, objective and verifiable facts.
  • The claimant must make a credible and plausible case that a dispute may arise, the resolution of which depends on the results of the expert opinion.

Thus, mere assumptions are not sufficient to demonstrate a legitimate reason within the meaning of Article 145 CPC.

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The “autonomous evidence procedure” before German courts : statements with the aim of avoiding litigation

Under German law, an autonomous evidence procedure (“selbständiges Beweisverfahren”, §§ 485 et seq. of the German Code of Civil Procedure (ZPO)) can also take place before any proceedings on the merits, if the plaintiff demonstrates a legal interest in establishing :

  • The condition of a person or the condition or value of an object,
  • The cause of personal injury, property damage or a material defect,
  • The cost of repairing such damage or defect.

Such a legal interest may be presumed if the result of the evidence procedure serves to avoid litigation.

The Hamm Court of Appeal (OLG) (decision of 25 June 2019 – 28 W 15/19) has clarified the concept of legal interest in a case related to “Dieselgate” : the purchaser of a vehicle suspected that the model he had bought had an increased emission of pollutants and was therefore planning to bring a claim for damages against the car manufacturer. He wanted the level of pollutant emissions to be determined by means of an expert opinion in evidence proceedings before the main trial.

The car manufacturer argued that this request was inadmissible because it was only for information purposes, so there was no legal interest.

But the Court of Appeal agreed with the claimant that the issue of the vehicle’s pollutant emission level could be the subject of evidence proceedings, since the condition of the vehicle would be affected. As the concept of legal interest must be interpreted broadly, the request for evidence may also relate to facts which the applicant only suspects. The request is to be rejected if the applicant’s assumptions are arbitrary or if the litigation appears to be doomed from the outset. However, in view of the media reports on other Dieselgate cases, this was not the case here.

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The existence of concrete indication as a dividing line between permissible action to prepare for litigation and inadmissible action to obtain information

It is therefore crucial, in French and German law, to present concrete indication of the facts to be established in order to initiate expert proceedings. Mere supposition is insufficient. As to whether, as in French law, it is a matter of preparing for litigation or, as in German law, of avoiding it, the difference is tenuous…

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