Expertise ordered in a summary proceeding: watch out for procedural time limits!- Newsletter
The French law of 2008 reforming the prescription periods has introduced an article 2239 in the French Civil Code, which establishes that this period is suspended in case of an independent proceedings for the taking of evidence. This provision should prevent the applicant from introducing the proceedings on the merits before the expertise ends.
Article 2239 only designates prescription periods, not limitation periods (“délais de forclusion”). In a decision delivered on June 3rd, 2015, the Cour de cassation, the French Supreme Court, ruled out its application to the deadline set for the action based on hidden defects (article 1648 of the French Civil Code), as such a deadline is considered as a limitation period.
In the case at stake, the Court considered that the action of the applicant was lodged out of time when he introduced the main proceedings. The period was very well interrupted by the application for interim measures (Article 2241 of the French Civil Code provides the interruption of both prescription and limitation periods), but in the absence of a suspensive effect, the limitation period laid down by article 1648 started to run again when the Court order appointing the expert was issued, and not when his report was delivered.
However, this risk is mitigated since it is known that the starting point of the limitation period laid down by article 1648 – upon discovery of the defect – is often considered as when the expert delivers his report. But this interpretation is a sovereign decision of the judges and depends on the circumstances at stake.
Be that as it may, when hidden defects are at stake, one should better exercise caution and, according to the circumstances, not wait until the expert has delivered his report before introducing the proceedings on the merits!
In contrast, the Cour de cassation has just confirmed in a judgement of May 19th, 2016, that the suspension does apply to the two-year timeframe set out in article L.114-1 of the French insurance Code, which is applicable for actions based on insurance contracts.