STAGE PALAIS DE JUSTICE, PARIS, NOVEMBER/DECEMBER 2004

February 2005 STAGE PALAIS DE JUSTICE, PARIS, NOVEMBER/DECEMBER 2004 I had the great good fortune to complete a stage at the Cour d Appel in Paris, from 29 November until 10 December 2004. It was an immensely enjoyable and enriching process. I was warmly welcomed and was looked after very well. All went out of their way to take time to talk to me candidly about their work and the French judicial system. I attach a copy of the first-class programme which had been arranged for me. This included observing hearings in different courts, including the Cour de Cassation, Cour d Appel, Tribunal de Grande Instance and Tribunal de Commerce. I met the judge who is chef de greffe in the Greffier en Chef. In effect, she is head of human resources and accommodation for the Cour d Appel in Paris. The practical problems of running a massive building housing so many people, on a budget which is being tightened, would no doubt be recognised by those in the court administration in this country. I spent useful time in the library, where the librarian is a great anglophile. Everyone was so very kind. I set out in this report some of my observations and matters which I learned during my visit. Any errors will arise from lack of understanding on my part. In addition to this short report, I have kept a detailed diary and case notes. Language and Systems. It would be difficult to do a stage and derive benefit from it without a good working knowledge of French. I spent a fair amount of time during the year prior to my visit studying French legal method and procedures. Without that study, I should have found the system and procedures bewildering, and not have derived so much benefit from my visit. The texts which I found most helpful were: French Legal System by Catherine Elliott and Catherine Vernon, Pearson Education Limited ISBN 0-582-32747-4 and French Legal Method by Eva Steiner, OUP ISBN 1-84-174185. My aim had been to learn, in particular, about the French approach to expert evidence and the cost of litigating construction disputes in France. The courts at each of the three levels I observed were concerned with such issues. I was privileged to meet M. Chazal de Mauriac, Premier President, on my first day. He very kindly took time briefly to describe the work of the court in relation to construction disputes. He identified three live issues in relation to this work. The first was the evolving law, given the involvement of insurance companies. The second concerned experts. While there is clearly heavy involvement of experts, M le President did not consider there to be an issue as to the quality of experts. Finally, M le President raised the question of the quality of legal advice and support. With experienced advocates cases progress well and smoothly, but he said that inexperienced advocates could be a problem. 1

Construction There are big differences between the French system and that in England and Wales. In France, there appears to be greater certainty than in England as to the contractual arrangements made. Part of the work of the TCC in England concerns determining whether or not the parties have entered into a contract. In France, unlike in England, the law is premised on the basis of presumptions in favour of a person who arranges for work to be undertaken and in favour of a person (e.g. a neighbour) who is adversely affected by construction work. In France, unlike in England, there is an obligation for project insurance cover (commonly decennial insurance in large projects). If, for example, work is defective, the decennial insurer indemnifies the client in respect of direct and indirect losses eg the cost of repairs and loss of income, then seeks to recover from those it considers responsible. In France, insurers do not exercise a right of subrogation. As a consequence, there will be many parties to court proceedings: every professional or contractor involved with the project will be joined as a party as well as the insurer of each. It was common to see 12 or 15 defendants to an action. Each had its own avocat. In two weeks I saw parties only twice. The first was at a short refere hearing dealing with enforcement of judgment concerning a trademark. The second was at a directions hearing. The presence of the parties seemed to prompt the avocat to more passionate presentation of the case than might otherwise have happened. My surprise at the absence of parties was matched by my hosts surprise at my expectation that parties would wish to be present. Two judges commented that the avocats preferred their clients not to be present. Judges Most are career judges. About 15% had previously been avocats or, rarely, academics. I met one judge who had been a notaire and who had been appointed directly to the Cour de Cassation. At least 50% are women. Judges from ethnic minority backgrounds are few, though some are now being appointed at the lower levels. In most cases judges sit in a tribunal of three. Tribunal de Commerce: judges are not professional judges but professionals from other disciplines or businessmen who are elected by their peers. I observed a former engineer who sat as juge rapporteur in the Tribunal de Commerce. He has been a tribunal member for 11 years. He told me there are 48 members in Paris, drawn from a very wide variety of professions. (His approach was one of dialogue with the advocates, and, as he had clearly mastered the papers before the hearing, his questions were very much to the point. His hearings came close to the English model.) The engineer/judge I observed was sitting alone in his capacity as juge rapporteur. After the hearing, he would report to and debate with two colleagues, and together they would produce a judgment. The process of deliberation between the members of a tribunal or court is private and indeed secret. No dissenting judgment is delivered. The fact of any dissent is kept secret from the parties. There are substantial delays before cases are determined. This appeared to be attributable, in part, to the delay in obtaining expert evidence. The workload appeared to be high, and it was clear that judges are hard working. French judges dealing with construction and hearing commercial disputes described familiar 2

problems: too much evening and weekend working, and partial use of holidays to complete outstanding judgments. Every judge is appraised every two years by his/her president. Because theirs is a collegiate system, the president is in a position to appraise his/her colleague s performance. Although a judge can remain at a certain level, the expectation is that judges will seek promotion. Advocates It appears that use of lawyers is not obligatory, but in practice most parties do instruct lawyers. I saw only one party in person, at a refere. There is a school of thought that representation by lawyers should be obligatory, and indeed parties should be entitled to instruct only specialist avocats if a case goes to the Cour de Cassation. In the construction field, the level of work is now about 50% lower than it was in the 1990s. The litigation climate is changing. There is a perception that litigation takes too long and the cost is disproportionate. Now, the lawyers will discuss the possibility of settlement. That was not the case in the 1990s. Avocats are courteous to the court. There appears to be no requirement that they do more than represent their client s case; there appears, for example, to be no requirement to draw to the attention of the court any points which go against them. Costs No fees are payable to use the court. Legal aid appears to be readily available In commercial cases, avocats charge about 180 euros per hour, excluding taxes. I was unclear as to the extent to which fees were in practice recovered. The judges told me that they will normally order the losing party to pay depens i.e. disbursements, which include the expert s fees, fees which are fixed by statute eg for service of documents by huissers, and fixed fees for some stages e.g. lodging assignations. But they said that they were generally ignorant of the fees which the parties avocats were charging and would not normally make any order for payment of such fees. An avocat, however, told me that some avocats add their fees to the sums claimed, and that if they included their invoice in the dossier presented to the court, there was a good prospect of recovery. At the Cour de Cassation level, in almost every case where the appeal failed, an order was made pursuant to article 700 of the Civil Code for costs of 1,800 euros (though expressed orally as 2,000 euros). Experts The court appoints the expert. The parties must pay the cost. The Cour d Appel maintains the list of approved experts. It is considered an honour to be included on the list. Parties may identify a suitable expert from the list and ask the court to appoint that person. (The Cour d Appel also maintains a confidential list of those experts who are considered not to be up to the job.) 3

In larger or more complex cases, the parties will have their own experts who assist with preparation of their case. There might, but would not necessarily, be contact between the parties experts and the court-appointed expert. It can take years for the court expert to report. I read papers in one case where it had taken four years for the report to be prepared. This is in part because the expert must hold meetings to discuss matters, and getting everyone together can be very difficult given the multiplicity of parties. This creates substantial delay in whole process. The court-appointed expert will reach a conclusion as to what has gone wrong and why, what remedial work is required and how much that will cost. He then gives his opinion as to how, on a percentage basis, responsibility should be shared between the parties e.g. as between architect, project manager, contractor(s), supplier of materials and control officer. Frequently, all of these will be found to be liable to some extent. At trial (at first instance and on appeal) the principal issues for the court concern challenges to the expert s opinion as to the percentage responsibility to be attached to the various parties. It appeared to me that the parties did not generally question the expert s conclusions as to what had gone wrong or why; they litigated only about the apportionment of liability. Procedures There is no procedure akin to our requirement for disclosure of documents. If the court considers that disclosure of a particular document might assist, it has the power to order that it be produced. Evidence from witnesses is extremely rare. The court-appointed expert will meet the parties, consider relevant documents and carry out whatever investigation or research is necessary to determine whether there are defects in design or construction, why these have occurred, what remedial work is necessary and how much that might cost. The expert summarises the facts as he understands them. I saw no case in which the parties contested the facts. In construction disputes there will commonly be a hearing called a Mise en etat ie a directions hearing, heard by a single judge. At such hearing, the judge will monitor progress and deal with any procedural matters which need to be resolved before trial. This may include, for example, whether the scope of instructions to the expert should be expanded. The judge will fix a timetable for the lodging of documents and a hearing date. A hearing called a Refere is a summary process, heard by a single judge. The judge can order a payment on account of damages, for example in a case where the expert s report indicates clearly liability. At a mise en etat or refere, a paying party may apply for a stay of execution of an order for a payment on account, on the ground that the receiving party would be unlikely to be able to repay money if it ultimately failed. Such an application appeared to be relatively common. The period between hearing and written judgment in respect of mise en etat and refere hearings varied from four working days to a couple of weeks. Final hearings are very short. At the final, oral hearing, each advocate makes a short presentation then leaves a detailed dossier with the court, which contains submissions crossreferenced to relevant documents, copies of which are enclosed. The dossiers look forbidding, but in practice many documents will be duplicated. It is rare that parties attend any hearing. The judges expressed surprise at my astonishment at the lack of parties. One 4

explanation was that it was all written in the dossier, so there was little for a party to observe at a hearing. So far as I could tell decisions and judgments always written; none is given ex tempore. This is understandable given a system which is substantially collegiate. After the oral hearing the tribunal discusses the issues in private, then delivers a written judgment. The juge rapporteur had read papers in advance of TGI hearing. The judge entered into very brief debate with the advocates as to various issues in the case. The court may suggest mediation. That process sounds to be very similar to the English approach. However, parties did not attend hearings and the court finds it difficult to persuade the avocats, whose interests lie in bringing cases to trial, that mediation should be attempted. Tribunal de Commerce At the Tribunal de Commerce there is a lay bench. A juge rapporteur conducts a hearing, then consults with his/her assessor colleagues, who are also laymen. The juge rapporteur whom I observed had practised as an engineer before election to the Tribunal de Commerce. He had read the papers carefully before the hearing. He entered into a pointed, detailed and helpful debate with the advocates, in a way which was familiar to those from an English background. He dealt with cases involving complex matters with an international context and difficult questions of law concerning cross-border transactions. He had a very solid grasp of the commercial realities and was well able to tackle the difficult legal questions he had to consider. In one of the hearings I observed, the juge rapporteur dealt with an application for a stay of proceedings in relation to an English P&I club, which was a party to the proceedings, arising out of an English contact of insurance, which included an unusual adjudication clause and an arbitration clause. The debate was wide ranging, including international conventions and the Arbitration Act 1996. It was well argued, and the juge rapporteur entered into an animated debate with the advocates. It seemed to me that he had a firm grasp of the legal question he and his two assessor colleagues would have to address. I was invited to enter the debate, in particular to comment on the meaning of the adjudication clause and the accuracy of an opinion provided by an English solicitor as to the enforceability in English law of these clauses. Indeed, after the parties had left, the juge rapporteur asked for my assistance in construing the clauses. The juge rapporteur told me that, given the information available to him, the decision of his tribunal risked being arbitrary on some matters, for example the quantum of loss suffered and therefore the level of damages to be awarded. So he would encourage the parties to mediate and try to settle. He told me that only 10% of decisions of the Tribunal de Commerce go to Cour d Appel and only 10% of those succeeded on appeal. Appeals There is an automatic right to take a case to the Cour d Appel from TGI or Tribunal de Commerce. There is no filter. The Cour d Appel is organised into one criminal and five civil sections each dealing with different classes of case. There is a Cour d Appel for every departement in France. The Cour d Appel conducts a complete rehearing of facts and law. 5

A filter was introduced a couple of years ago in the Cour de Cassation. Now, about 30% of cases are filtered out, by a group comprising President, doyen and one other judge. The Cour de Cassation may reject an appeal or conclude that it is fully or partially apt for cassation. If the latter, the court states what is the law. The case is then remitted to the relevant Cour d Appel for reconsideration. The Cour de Cassation does not apply the law it finds to the facts of the case so as to arrive at a decision as between the parties; that is left to the relevant Cour d Appel. Conclusions The overall impression I gained was one of a system where the parties do not retain as much responsibility for their affairs as in England and Wales. They hand over to the judges the responsibility for their dispute. There is an expectation that the judge will sort the problem. This leads to a burdensome workload for judges. The judges rely more heavily than in England on the expert evidence. A minor frustration was that, although I observed the hearings and submissions, in only one case did I observe the delibere. It was tantalising not to know the decision. It was a great privilege to observe two sessions in the Cour de Cassation. The procedures are so very different from those in English courts. It would have helped if I had been able to read papers in advance. That would have helped me to understand better the different arguments advanced around the room and the reasons for the conclusions reached. Although the systems are so very different, there are some lessons which we should learn. Under the French system, (although I cannot give figures to substantiate this) it must be the case that parties spend very substantially less on construction litigation than they do in England. The reasons for this are many, and include the following: the interlocutory stages are much simpler there are fewer arguments about pleadings, disclosure and evidence the parties will generally be paying for only one expert the hearing before the judges is very short It is unrealistic to suggest that one might transplant some ideas from a system which is so different from ours. However, it must be said that the French approach appears to be one which permits access to the courts at reasonable cost, a situation which does not obtain in England so far as construction disputes are concerned. Lessons we could usefully learn include the need to encourage parties to make more use of jointly-instructed experts, to encourage attempts to agree evidence and adduce oral evidence only when truly necessary, and to be more alive to the futility of some interlocutory skirmishes eg about pleadings, disclosure or evidence, and which are such an expensive feature of our system. Finally, I hope that others are encouraged to observe courts in another country. One should resist the temptation to make value judgments as to which system is better. Observing a different approach makes us reconsider our own and look more critically and objectively at what we do and why. One can always learn how to improve one s own skills and develop one s own approach. It was a fascinating and personally very enriching experience. I am very grateful to all who did so much to make it a success for me. 6

Frances Kirkham Technology and Construction Court, Birmingham February 2005 7