Partner Sylvie Gallage-Alwis examines expert proceedings in French Courts

By Sylvie Gallage-Alwis

Partner Sylvie Gallage-Alwis explores the process of expert proceedings in French Courts involving product manufacturers.

Sylvie’s article was published in Today’s General Counsel, 8 July 2022, and can be found here.

Foreign manufacturers are often surprised to be first introduced to a French product-related issue by being served with a summons to appear before a French Court. This is a standard process in France. Here is what you need to know about what happens next.

There is no provision under French civil procedure for discovery/disclosure of documents, nor ex parte expert or witness reports to be submitted. Expert proceedings are used to gather elements of fact and provide the court with an independent authorized technical opinion.

As such, when the solution of a dispute is dependent on a technical issue, the plaintiff asks for the appointment of an expert in summary proceedings — or emergency summary proceedings — before she or he launches any case on the merits. An order appointing an independent expert may be obtained within weeks, days or hours, depending on the urgency of the matter.

It is very difficult to oppose a claim for expert proceedings unless the defendant sued is obviously the wrong party, for instance, they have not manufactured/sold the product at issue. Courts appoint an expert in 99 percent of cases.

A hearing for the appointment of an expert(s) tends to be quite short. Generally, only the scope of the expert’s assignment is debated. The parties may suggest experts in the field in question, but the court has discretionary power to decide who it will appoint. Usually, the expert is selected from an official list registered with the court of appeal that has jurisdiction over the case or with the French Supreme Court.

The party that is to pay the expert’s advance fees (the plaintiff, unless provided otherwise in the court order) must deposit the amount set forth in the order with the clerk of the court.

Various meetings will generally be convened by the expert. These meetings are attended by the expert, the parties’ lawyers, the parties’ representatives (managers, business and/or technical people, as required) and, if needed, by ex parte technical experts retained by the parties. The expert questions the attendees on the matter at stake and requests the production of necessary documents. The merits of the case are not discussed. The expert may only address technical issues.

The expert proceedings are closed when the expert files her or his final report with the clerk of the court, a copy of which is sent to the parties’ lawyers. The report must contain all pieces of information necessary to understand the issues at stake and the expert’s conclusions.

Should the expert’s conclusions support plaintiff’s claim, then she or he needs to initiate proceedings on the merits, requesting the court to rule that the claim is well founded against the party or parties deemed to be liable, order compensation of the loss sustained, and rule that the defendants are to bear the expert’s costs as well as part of the legal fees incurred.

The expert’s report is non-binding on the court. However, in most cases, the complexity and technicality of the issues at stake mean that the court adopts the conclusions of the expert. This is why it is important for manufacturers to be as involved as possible in the expert proceedings. The report will be crucial in determining the liabilities.

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