Context: A banal battle of expert reports
The facts of the case are nothing out of the ordinary. A client had hired a contractor to repair an external staircase. However, due to alleged defects in the works, the client refused to pay the balance of the contract price.
The contractor's insurer carried out an amicable expert appraisal, which concluded that there were no defects. Dissatisfied with the result, the client resorted to asking another expert for a second appraisal, to which both the contractor and its insurer were summoned. The second expert reached the conclusion that remedial works were necessary.
A dispute ensued, resulting in a first-instance judgment condemning the contractor to compensate the client for the defects in the staircase renovation, and refusing the request for payment of the outstanding balance. Given the small amount at stake (less than €2000), leave for appeal was not granted and the contractor appealed directly to the Supreme Court.
The first-instance judgment was overturned and annulled on two grounds. On the one hand, the court was found to have violated the principle of adversarial proceedings by relying exclusively on a party-appointed expert report. On the other hand, the court was found to have violated the principle of full compensation by both awarding damages for the defects and rejecting the contractor’s request for payment of the outstanding balance.
Admissibility of party-appointed expert reports under French law
In French civil procedure, court-appointed experts (experts judiciaires) and party-appointed experts (experts amiables) are subject to two clearly distinct regimes. Court-appointed experts are appointed directly by the judge, and their activity is governed by the French Code of Civil Procedure. They operate as auxiliaries of the judge and must carry out their duties in accordance with the principle of adversarial proceedings and with complete impartiality, in order to guarantee the rights of the parties.
The activities of party-appointed experts, on the other hand, are not governed by the French Code of Civil Procedure, but by professional rules of conduct. As such, the manner in which party-appointed experts carry out their mission may vary greatly, and any report issued has no particular evidentiary value.
Due to the significant influence a court-appointed expert's report is likely to have on the judge, the European Court of Human Rights ensures that all parties are able to make effective observations on the report and make their voices heard.2
Also, court-appointed experts’ financial independence from the parties, as well as their obligation to conduct their mission in an adversarial manner while remaining objective and impartial, means that court-appointed experts and their reports are afforded a certain degree of legitimacy. When a court-appointed expert's report is not produced in accordance with the terms of the French Code of Civil Procedure – although it is not necessarily deprived of all evidentiary value – it cannot claim to have more value than a party-appointed expert report.
On the contrary, when an expert is appointed by a party, be it jointly or otherwise, the same guarantees do not apply. Therefore, the report of a party-appointed expert is traditionally regarded with greater suspicion by the court. The suspicion of collusion between the expert and the appointing party gives rise to questions regarding the admissibility and evidentiary value of party-appointed expert reports.
That being said, in principle, there is nothing preventing the admissibility of party-appointed expert reports. While it is true that the French Civil Code provides that “no one may constitute their own means of evidence,”3 this restriction concerns only the proof of legal instruments. When it comes to legal facts, these can be proven by any means.4
However, case law has set a limit to this principle: a court cannot, without violating the equality of the parties, rely exclusively on party-appointed expert opinion.5 This principle has remained stable since 2012, when the Supreme Court enshrined the following rule: “despite the fact that the court cannot refuse to examine a document that has been duly submitted in the proceedings and subject to adversarial discussion, it cannot rely exclusively on an expert report produced at the request of one of the parties.”6
French case law does not require that party-appointed expert appraisals be subject to an adversarial procedure per se; it is sufficient that the report produced be subject to an adversarial debate between the parties in order to be admissible as evidence.7 However, the evidentiary value of the report is conditioned by the existence of other supporting evidence that corroborates it.
Before this recent decision of the Supreme Court, it would have been reasonable to ask whether it was possible to circumvent this restriction by calling on the other party to be present at the expert appraisal. As of May 14, 2020, such a loophole is now closed. That being said, two months before this decision, the Supreme Court had admitted another party-appointed expert report as supporting evidence.8
While helpful, this decision does not solve all problems, however. For example, how is the court supposed to deal with an amicable expert report that has been requested jointly by the parties, or an expertise carried out in an adversarial manner?
In reality, the restriction set out by the Court could potentially be much broader, since case law sometimes applies the above-mentioned principle, enshrined in 2012, to court-appointed expert reports.9
A controversial approach highlighting the value of adversarial expert evidence and the flexibility of arbitration proceedings
Commentators are often critical of the formalism of the Supreme Court's approach to evidence when it comes to party-appointed experts. In fact, the task of the first-instance judge is to assess the evidentiary value of the evidence submitted. Thus, what matters is not so much the origin of the report, but the guarantee that an adversarial debate has taken place, as well as the seriousness of the judge's examination of each piece of evidence submitted by the parties. The formal requirement that the report be supported by other evidence provides little additional guarantee.
More fundamentally, looking beyond the procedure before the French courts, one may wonder what the scope of this requirement is. In particular, given that construction disputes are often submitted to arbitration, should arbitral tribunals now be careful not to base their decisions solely on a party-appointed report, failing which there may be a risk that their awards will be set aside for breaching the principle of adversarial proceedings or public policy?
The answer is most certainly no, at least when it comes to international arbitration under French law. Due of the autonomy of international arbitration under French law, an arbitral tribunal is not obliged to follow the rules of procedure laid down for the state courts. The adversarial nature of arbitral proceedings should not be confused with the question as to whether an expert report has been drawn up in an adversarial manner. Once expert reports have been fully debated by the parties, French international public policy should not prevent the recognition of an award on the sole ground that the arbitrator relied exclusively on the report of one party-appointed expert.
The traditional flexibility of arbitration regarding state rules of procedure is an advantage that must be taken into consideration, especially in areas where recourse to expert evidence is frequent (for example, in the field of construction, where it is often required for the assessment of damages, delay, and technical issues). The procedural framework of arbitration makes it possible to remedy the often excessive delays caused by the regime of court-appointed experts, while offering greater control over the procedure. In fact, it is possible to organize arbitral proceedings in such a way that the use of expert evidence does not lengthen the arbitral proceedings as a whole.
In any event, when having recourse to expert evidence proves indispensable, it is recommended to turn to procedures such as those provided for in the International Chamber of Commerce (ICC) Rules for Experts, which guarantee both the quality of the expertise and the rights of the parties in their dispute. It should also be noted that when the request for proposal of an expert is submitted by an arbitral tribunal acting in accordance with the ICC Rules of Arbitration, the ICC International Centre for ADR (Alternative Dispute Resolution) provides its services free of charge.
How Reed Smith can help
Recourse to expert evidence in the field of construction, and more generally in litigation or arbitration, is, more often than not, unavoidable. In addition to the various strategic elements at play, such recourse also tends to represent significant costs. Our Energy and Natural Resources (ENR) team has extensive experience in the field of construction and energy and can support experts in order to optimize your litigation or pre-litigation strategies.
While reliance on expert evidence has become the norm in certain sectors such as construction, in certain jurisdictions the evidentiary value of an expert’s report is still subject to compliance with certain restrictive rules. With regard to party-appointed experts, French case law prevents the court from basing its decision exclusively on a party-appointed expert, even if the appraisal took place in the presence of all parties.
- 3rd Civ. Chamber, May 14, 2020, No. 19-16278, 19-16279.
- ECHR, March 18, 1997, Mantovanelli v. France, no. 21497/93.
- Article 1363 of the French Civil Code.
- Article 1358 of the French Civil Code; 2nd Civ. Chamber, March 6, 2014, 13-14.295.
- 3rd Civ. Chamber, February 3, 1990, No. 09-10.631.
- Mixed Chamber, September 28, 2012, No. 11-18.710.
- 2nd Civ. Chamber, November 7, 2002, No. 01-11.672.
- 3rd Civ. Chamber, March 5, 2020, No. 19-13,509.
- 2nd Civ. Chamber, September 7, 2017, No. 16-15,531.
Client Alert 2020-559
