NEWSLETTER : Expert evidence in France and Germany n°1/2021- Newsletter
One of the daily activities of our Industrial Risks and Insurance team is to accompany industrial manufacturers or their insurers when they participate in expert evidence proceedings. In such cases, strategic decisions must be taken from the beginning of the expertise, then during its course up to the use of the expert’s report in the legal proceedings. These decisions may for example concern the choice of the court to be seized, the appointment of the expert, the extent of his mission, the meetings and communications with the expert or, as the case may be, the hearing of the expert before court, sometimes with cross-examination by the parties.
The different understanding of the rules of adversary proceedings implies different practices depending on whether the proceedings take place in France or in Germany. But there are also many other crucial points, such as deadlines, written communication with the expert, procedural rules, etc.
hw&h will regularly keep you informed of the latest developments on these subjects through a monthly newsletter which covers current topics from a comparative French/German perspective. We are pleased to answer your questions and comments: please do not hesitate to contact us.
A “vade mecum” on the conduct of expertise proceedings in France is also available to our subscribers in English and German – simply send us an e-mail or fill out the document in order to obtain this file. A similar document on the conduct of expert proceedings in Germany will soon be available in French.
Enjoy your reading!
Expertise and Corona – holding meetings during expert evidence proceedings in times of pandemic
Since the beginning of the Covid 19 pandemic in the spring of 2020 and the resulting contact restrictions, many meetings have been cancelled and held via videoconference. All economic sectors as well as the justice system had to adapt to this context. This also applies to expert evidence. In particular, the holding of adversarial meetings during such proceedings has raised practical questions for experts: representatives of both parties must be invited to these meetings, which are often technical and require on-site observations, so that “physical” meetings are inevitable.
Adversarial meetings during COVID-19 pandemic: German case law
The Regional Court of Saarbrücken (judgment of 12 May 2020 – 15 OH 61/19) gave a clear answer to an expert’s question: the site visit for the collection of evidence must be carried out despite the Corona pandemic, when this on-site meeting is necessary for the expert to give his opinion. The case in question concerned the assessment of defects in a residential building. The expert had referred the matter to the judge after one of the parties to the dispute had objected to the holding of the meeting because of the risk of contamination through COVID-19. The court replied that there was no sufficient reason for cancelling the meeting if the health protocol was observed (§ 227 of the German Code of Civil Procedure provides that any procedural date set may be cancelled or postponed if there is an important reason). It is, however, the responsibility of the expert to ensure that said protocol is complied with. For example, he must order the wearing of masks for all participants. Participants who fear a risk to their health may be represented by another person.
However, the court pointed out that compliance with the health protocol is not always easy, especially when the premises to be inspected are small. It calls for participants’ discipline in order to allow meetings to be held in the best conditions under the circumstances.
The court of first instance of Schwäbisch-Hall (decision of 4 May 2020 – 1 K 45/19) agreed: there is no reason to postpone an adversarial meeting to a date after the Covid-19 pandemic. Such a postponement had been requested by one of the parties because of the risk of contamination. The court responded that the risk did not specifically arise from this meeting. On the contrary, as long as no vaccine is available (the judgment was rendered in May 2020), the entire population is exposed to this risk. Moreover, the risk of contamination in this case was low since the meeting was dedicated to the outdoor visit of real estate property. Each of the participants was free to give power of attorney to be represented if they wished to avoid any risk. The court nevertheless specified that the applicable health protocol had of course to be observed during the meeting.
Maintaining the essential functions of expert evidence in France: adapting procedures to sanitary conditions
Similar questions have been raised in France. In their information letter dated March 2020 (“Le Covid-19: l’expertise de justice confinée ?“), the National Committee of experts companies (Conseil national des compagnies d’experts de justice (CNCEJ) and the magazine EXPERTS presented the possible measures in different fields of law.
In mid-March 2020, most French courts were closed and only hearings that could not be postponed were held. In this context, some expert activities were also maintained, including physical examinations and autopsies in criminal proceedings.
A particular problem then arose concerning expert meetings: face-to-face meetings were prohibited during the first “lockdown” phase in spring 2020. Travelling was only allowed for professional purposes. This meant that – at that time – the expert and the parties’ lawyers could have attended the meetings, but not the parties themselves.
During the second lockdown period in France (in autumn 2020) the French Ministry of Justice published a FAQ stating that it was possible for the parties to attend expert meetings. Indeed, the exemption certificate – which citizens must fulfil when leaving their home during lockdown or curfew periods in France – contains a box entitled “Judicial or administrative summons” which shall be ticked in order to attend an expert meeting. Since judicial activities are maintained despite curfew restrictions, it is likely that this certificate would also allow the parties to travel from the meeting venue to their homes during the curfew, if the duration of the meeting so required.
Furthermore, Article 279 of the French Code of Civil Procedure allows the judge to “extend the time limit within which the expert must give his opinion when the technician encounters difficulties that prevent him from fulfilling his mission”. Many deadlines for the submission of expert reports have been postponed on this basis.
In addition, depending on the case, meetings can sometimes be held by videoconference. If so, the expert must pay particular attention to the principle of adversarial proceeding: in particular, he must obtain the prior written agreement of all parties for the use of videoconference and send them all the documents relating to the meeting.
In the field of administrative procedure, only the most urgent proceedings could continue during the first lockdown. In particular the so-called “procedures IMR” (“Immeubles Menaçant Ruine” i.e. urgent proceedings regarding buildings that are about to crumble), which require the assessment of a building within 24 hours, could be initiated despite the lockdown. Usually, this proceeding requires the mayor of the municipality concerned to request the competent administrative court to appoint an expert. In case of emergency, e.g., if the court cannot be contacted because of the restrictions associated with the pandemic, the mayor may also appoint the expert himself (Articles L. 2212-2 and L. 2212-4 of the General Code of Local Authorities). It is also possible for experts who are familiar with the subject matter to report any building that is about to crumble on their own initiative.
Practical implementation: use of electronic communication means
The work of experts is certainly made more difficult by the pandemic and the restrictions it imposes. Nevertheless, in many cases and under certain conditions, they can continue their mission, and many expert evidence proceedings are carried out under good conditions despite the restrictions imposed by the COVID-19 situation. Experts, like many other professionals, now rely more and more on electronic means of communication and in particular on videoconferencing.
In France, the National Committee of experts’ companies gives practical advice in this respect: in June 2020, it drew up, in consultation with the Ministry of Justice, a “specific notice for judicial expert evidence proceedings in civil and administrative matters”. This notice lists recommendations concerning the holding of expertise meetings in times of pandemic. In particular, it sets out the health rules to be respected during adversarial meetings, reminds the need of the parties’ agreement to hold videoconference meetings instead of face-to-face meetings, recommends the communication of statements and documents by electronic means, etc. Finally, it lists the answers to several questions frequently asked by companies of legal experts. This notice can be downloaded (in French only) under the following link.
In addition, in July 2020, the National Committee of IT and related technologies Experts (CNEJITA) published best practices for the use of videoconferencing during expert meetings. These can be downloaded on this Website.
In Germany, the Chambers of Commerce and Industry (which maintain lists of certified experts) also provide guidance to experts. In particular, they publish recommendations regarding the organization of expert meetings during the pandemic (see, for example, the recommendation of the Leipzig Chamber of Commerce and Industry).
In the case of an amicable expertise, the expert must assess himself whether the meeting is indispensable or can be postponed. In the case of a judicial expertise, he shall consult the court.
In all cases, the expert must ensure that neither party is prevented from attending the meeting because of the restrictions in force. The Chambers of Commerce and Industry also recommend contacting the local authorities to find out about the applicable sanitary regulations. It should be noted that taking measures to combat Covid-19 falls within the competence of the Länder; consequently, sanitary rules may vary from one Land to another.
On the other hand, cross-border expert evidence proceedings are currently quite difficult to organize considering the travel restrictions in force. Both in France and Germany, exceptional travel authorizations apply to activities related to justice, whether in periods of lockdown or during curfews. For example, persons coming from risk areas are allowed to enter Bavaria without having to submit to a quarantine if their activities are essential to the functioning of justice and if they can justify of a recent negative Covid-19 test (see the Bavarian “EQV” regulation of 5 November 2020). Nevertheless, experts are well advised to inform themselves before each meeting about the regulations applicable in the country or zone concerned and about any changes to them, as the regulations are subject to considerable change depending on the sanitary situation.