(D) The gathering of evidence

However, even more different from the English process are the ways in which les preuves (in the sense of evidential materials) are presented to the juges du fond. There are two main features here.

(I) The distrust of orality and the absence of documentary disclosure

The French civil process reflects a longstanding distrust of orality and a preference for written evidence⁵⁷ and French civil hearings typically do not consist of the hearing of witnesses, their cross-examination and the lengthy exposition of legal arguments.⁵⁸ As to non-technical matters, witnesses may be heard by a court directly, but it is more common for the parties (not their lawyers) to obtain written depositions from witnesses.⁵⁹ On the other hand, there is a striking paradox in French reliance on written evidence, for its civil process does not possess what a common lawyer would recognise as a power to order disclosure.⁶⁰ For while French law gives its courts an apparently wide power to order the production of documents, in reality this is rarely exercised, since the parties can ask only for the production of an identified document and must also show its relevance, both of which assume that they already know of its existence and its content;⁶¹ there is no duty of disclosure of a list of relevant documents in either the parties or their lawyers. The exchange of documents is seen as part of the right of a party to see the other’s case, rather than as a mechanism for the discovery of facts prejudicial to the other side from their own documents; and the weight of professional ethics is balanced in favour of not revealing any document prejudicial to one’s own client’s case, rather than the revealing of any relevant document in a quest for the truth.⁶² In the result, relevant documentary evidence often does not come before civil courts because opposing parties do not know what to ask for and will not volunteer it in the absence of specific, judicial instruction.

(II) The expertise

French courts do not take evidence’ of technical facts in the way in which much controversial technical evidence is taken in the English civil process, viz. by competing (p.49) evidence, whether oral or in writing.⁶³ Instead, technical issues are the object of an independent written report by judicially appointed technical experts, this process being termed the expertise. However, technical experts often go well beyond the merely technical and, inevitably, give their own judgments on issues which are strictly of mixed law and fact, such as the existence of une faute. There are four key features to expertises.

First, while a French court has the power to order an expertise of its own initiative, it rarely does so and can refuse a party’s request for an expertise for no more specific reason than that it considers it of no use.⁶⁴ A court has a complete discretion as to whom to appoint to advise on technical issues,⁶⁵ although they may refer to lists, approved for different areas of France by the administration. The parties may challenge an experts appointment only on very narrowly defined grounds of relationship to the parties themselves or involvement in the subject matter of the litigation.⁶⁶ The court has a ‘sovereign power of assessment’ in the definition of the expert’s task⁶⁷ and the timescale for submitting the report (which is usually in writing).⁶⁸ In all, the court controls the questions and to whom they are addressed.

Secondly, the expert or experts receive copies of any relevant documents from the parties and choose the method which he or they consider appropriate for the investigation of the issues in question. They can examine any physical thing (such as the scene of an accident or a product involved) and can hold a hearing with both parties (and their lawyers) present⁶⁹ and invite their and others’ accounts of what actually occurred.⁷⁰ For some, this hearing is closer to a common law trial than is the court’s hearing itself, though even here no cross-examination occurs.⁷¹

Thirdly, while in principle courts are not bound to follow the views of the expert,⁷² they very rarely do not, since, as one writer puts it, it is difficult for a judge to contradict an expert in his own field without recourse to the advice of another expert.⁷³ The court may, to this end, order a further expertise to examine or to re-examine issues whose treatment it considers unsatisfactory, but this is only rarely done.⁷⁴ Although a party may claim that the expertise be annulled either on formal or on substantive grounds,⁷⁵ again this is rare.⁷⁶ On the other hand, if the juges du fond fundamentally misinterpret the conclusions reached by an expertise, their decision will be quashed.⁷⁷

(p.50) Fourthly, although an expert is appointed by and reports to the court, the cost of the expertise is not paid for out of public funds.⁷⁸ Instead, the court decides on an appropriate fee for the expert⁷⁹ and which party or parties to the litigation should provisionally pay this amount into court in advance,⁸⁰ a decision for which the court need give no reasons.⁸¹ If this sum is not paid, the expertise lapses.⁸² The question which of the parties ultimately bears the costs of the expertise is not decided until the court gives judgment,⁸³ and then it is the losing party, unless the court otherwise decides for a specified reason.⁸⁴ What this means is, therefore, that if, as often happens, a claimant makes a provisional payment in respect of the likely cost of an expertise, he risks losing this if the defendant proves insolvent. As we shall see, this aspect of the costs of civil proceedings has tempted claimants to bring their claim where possible before a criminal court, where costs are differently handled.⁸⁵

What all this means is that in practice the French civil process severely limits the range of factual material which is put forward for the consideration of the juges du fond on an issue such as delictual fault. As will be seen, these characteristics of the French process have been fully reflected in its treatment of the key concept of vice or défaut for the purposes of contractual liabilities and will also be reflected at least in part in their treatment of the concept of ‘defect’ for the purposes of the Product Liability Directive.⁸⁶