An essential guide to the French joint court Surveyor’s investigation
by Christophe Hunkeler and Dani Allan
There are most commonly two different types of joint surveys conducted in France. The first is arranged informally as between interested parties. The second is the joint survey led by a court appointed expert.
In cases where the amount at stake is significant and/or where technical issues are at the heart of the dispute then the formal court surveyor’s investigation is the recommended and indeed most common approach.
It should be underlined at the outset that a formal court led investigation is an ancillary procedure to substantive proceedings, but not a substantive claim in itself. Commencing a French court surveyor’s investigation does not therefore seize the jurisdiction for the purposes of any substantive claim.
Why in France is it necessary to conduct an investigation jointly as between parties?
According to French procedure, all expert evidence, in order to have full evidential value, must be “contradictoire” and French procedure has therefore created a mechanism whereby expert evidence complies with the “contradictoire” requirements. This mechanism is the joint court surveyor’s investigation, otherwise known as the “expertise judiciaire”.
The principle of “contradictoire” means that all parties to the proceedings must have had an opportunity to attend/participate in/comment upon the expert evidence in question. This does not mean that they have actually attended/participated in/or commented upon the evidence, but simply that the party seeking to rely on that evidence can demonstrate that the other parties were given reasonable opportunity to do so.
In terms of the court surveyor’s investigation, this principle requires the court appointed surveyor running the investigation to obtain all relevant documents and evidence from the parties and to disclose it so that the parties have an opportunity to consider and comment upon it. The idea being that there is a real exchange and debate between parties to the investigation on all technical elements upon which the court surveyor is likely to base his report.
How is the investigation actually managed?
The running of the investigation is always under the ultimate control of the court, which follows the investigation, ensuring it is advancing as necessary.
The court appointed surveyor will lead the investigation through a series of meetings with the parties. When convoking the parties to such meetings, he will set out the object of the meeting. After each meeting the court appointed expert should in principle issue minutes of the meeting in which he will also invariably make preliminary comments or demands for information or documentation from certain parties. All parties to the investigation have the right to comment upon the expert’s meeting reports and indeed have the right to issue there own statements (known as “Dires”) throughout the investigation on any pertinent subject.
At some point however the expert will declare the investigation is at a close (the court order frequently imposes a time limit), and if permitted by the terms of reference, he will issue a preliminary report on his findings. The parties will then all be given an opportunity to comment upon the preliminary report before the court surveyor publishes his final report.
Some particular points of note:
- The parties may, and invariably do, appoint their own technical expert to assist the client and the lawyers. Therefore it is frequently the case that both lawyers and an expert attend the meetings and inspections. Equally the party’s technical expert will assist the lawyer in the drafting of technical comments and statements.
- It is also possible to participate in an investigation without being an original party to it. This is frequently the case for sub-contractors who wish to follow the investigation, especially if they consider there is a risk of liability for them in any substantive proceedings. However in order for the “expertise” to be binding on this voluntary party they must be a formal party to it (again the notion of “contradictoire” applies) and on occasion these voluntary parties will find themselves obliged to participate, either because the court orders it or because one of the other parties makes an application for them to become a party.
- The court appointed expert has the power to nominate a further expert (known as a “sapiteur”) to assist him on any particular technical point. They will often be used to conduct tests of a particularly complex and specialised nature. They are also invariably expensive and again it is usually the applicant/claimant who will bear this cost in the first instance.
How long does a court-appointed investigation take?
Although one of the intentions of this procedure is to act quickly to determine a particular technical issue, our experience shows that on average an investigation will take between 2 to 3 years from court order appointing the expert to the publication of the expert’s final report.
What are the costs of such an investigation and which party bears these costs?
There are two different costs elements to consider; those of the court expert himself (and any assistant, the “sapiteur”) and second, the costs of the parties participating in the investigation.
As to the court appointed surveyor’s costs, in practice these are, in the first instance, borne by the applicant party. If an investigation is particularly long or involved, then the court appointed surveyor has the power to ask the court to order the applicant party to make on account payments during the course of the investigation. Equally, if the expert designates a “sapiteur” to undertake particular tests or investigations, then these costs too are to be borne by the applicant party.
As for a party’s own costs, there are a number of elements to consider. The first is the investigation can last a significant amount of time. Second, there can be many meetings and inspections, which the parties must attend. Third, it is necessary to defend the client’s position throughout the investigation by submitting statements and submissions on the on-going investigations – the so called “Dires”. Finally it is almost always necessary to appoint a technical expert to work in parallel with the lawyers.
French procedure allows for the recovery of the court expert’s costs in the case of a favourable decision on the merits. This is to be distinguished from general legal costs which fall under a different procedural rule.
In the first case, if a claim for recovery of court surveyor’s costs is made then it will be automatically awarded by the judge hearing the substantive claim (article 699 of the French civil procedure code). In the second case regarding a party’s own legal costs such costs, although in principle recoverable, are within the discretion of the judge and even where awarded the amount represents only a small proportion of actual costs incurred (article 700 of the French civil procedure code).
How is the court expert’s final report utilised?
If at the culmination of the investigation, the applicant obtains a favourable report, it has two options; one, to commence proceedings on the merits and submit the expert report in supporting evidence; or two, to use the favourable report to try to obtain a settlement with one or more of the other parties.
In the case of the expert’s report being submitted in evidence in substantive claims, it is true to say that French courts often follow the conclusions of the court-appointed expert, although legally they are not bound by its findings. Equally the judge may follow some but not all of the surveyor’s findings.
Clearly the frequency with which French courts follow the findings of a court surveyor’s report underlines the importance of a party’s participation in the investigations, as it is the first and principal means of defending its interests, certainly from a factual and technical perspective.
In conclusion, it is fair to say that the French surveyor’s report provides for an effective way of rapidly obtaining (and preserving) evidence. Moreover, the investigations are invariably conducted in a professional and thorough manner and led by surveyors with the necessary experience in the given field. The result is invariably a probative and complete technical report which can be exploited not only within the French jurisdiction but in theory elsewhere, in circumstances where foreign courts have jurisdiction to hear the substantive claim.
Thomas Cooper’s team in Paris (which includes its own maritime technical expert, Captain Joseph Hardouin) has extensive experience in all types of court surveyor’s investigations.
If you would like to discuss this article or need specific advice, please contact Christophe Hunkeler or Dani Allan.