NEWSLETTER : Expert evidence in France and Germany n°2/2021- Newsletter
The principle of adversarial proceedings in France – Nullity of the proceeding requires the demonstration of a prejudice
The implementation of the audi alteram partem rule (also called the principle of adversarial procedure) is one of the essential differences between French and German expert evidence proceedings.
A decision of the French Supreme Court (“Cour de Cassation”) of 23 January 2020 once again illustrates this particularity of French judicial expertise.
Under German law, adversarial principle mainly applies after the submission of the expert’s report. Thus, the parties can always request that the expert be heard at a hearing, in order to ask all the questions they deem necessary for the understanding of the case. (§§ 397, 402 of the German Code of Civil Procedure, see German Federal Supreme Court, 20.11.2019, VII ZR 204/17).
By contrast, judicial expertise in France requires the expert to ensure an adversarial process throughout his investigations.
Thus, he must:
- convene all the parties to the expertise meetings (Article 160 of the French Code of Civil Procedure “CPC”)
- respond to any party’s observations (Article 276 of the CPC).
- According to case law, the parties must be informed of all the documentation that the expert uses for his analysis and be effectively put in a position to give their opinion. This has been recalled in the above-mentioned decision of 23 January 2020.
Failure to comply with the adversarial principle may result in the nullity of the expertise operations (articles 175 CPC, for an illustration see Cour de Cassation, 30 April 2014).
However, this nullity is subject to the rules on so-called “formal nullity” (“nullités de forme”, article 114 of the CPC). Thus, it can only be pronounced if:
- The party invokes the nullity of the operations in limine litis, i.e. before any defence on the merits and on the ground of inadmissibility (Supreme court, 30 Apr. 2014, cited above);
- the plaintiff succeeds in proving that the failure to comply with the adversarial principle has caused him/her a prejudice. The prejudice is generally understood as a disorganisation of the rights of defence, i.e. the non-compliance with this rule must have prevented the party from putting forward its observations and debating the expert’s conclusions in a contradictory manner (see for example Cour de Cassation 20 September 2016).
This second condition is recalled by the Cour de Cassation in its decision of 23 January 2020.
In the case submitted to the Court, a medical expertise had been ordered to determine the date of consolidation of the victim’s physical damage. Prior to the expert’s report, the health insurance fund, which was a party to the dispute, had sent the expert an argumentation setting out the reasons why the fund had chosen a certain consolidation date. This document had not been sent to the victim, who therefore requested that the expert’s report be annulled. This request for annulment had been refused by the Court of Appeal.
The Cour de Cassation acknowledged that the failure to communicate to one party the arguments sent to the expert by the other party constitutes failure to comply with an essential formality. Therefore, this could constitute a ground for the expert report to be declared null and void. However, the Court agrees with the Court of Appeal: the request for annulment could not be granted, as the victim had not demonstrated the prejudice caused by the non-compliance with the rules of adversarial proceeding.
Therefore, in the context of a French expertise, all the parties – or their respective counsel – must receive any communication one of them sends to the expert. However, failure to comply with the audi alteram partem rule is not in itself sufficient to declare the expertise null and void. The request for annulment must be presented as first defence argument (in limine litis) and must detail the impossibility for the party to comment on the elements which had not been communicated to her, but which the expert took into account.