Lawyer forensic expertise
The law firm Palmier - Brault - Associés is a law firm specialized in public markets.
The firm consists of experienced and responsive lawyers who regularly defend the rights of owners and companies in the context of forensic audit operations.
According to Article R. 532-1 of the Code of Administrative Justice:
" The judge hearing the application for interim measures may, on a simple request and even in the absence of a prior administrative decision, prescribe any useful measure of expertise or instruction ".
Two conditions must be met before the forensic measure is allowed:
- Litigation must be born or to be born;
- The forensic measure must be useful.
LITIGATION BORN OR NAIT
In order for the request for the appointment of a judicial expert to be successful, the requesting party must show that a dispute has arisen or is likely to arise between the parties to the proceedings. In a judgment dated June 23, 2006, Management Organization of the Sacred Heart Course, the Council of State recalls this solution in particularly clear terms:
" Considering, on the other hand, that the utility of a measure of instruction or expertise that is requested of the judge of the administrative court to order on the basis of Article R. 532-1 of the the aforesaid code of administrative justice must be assessed, even though the principal is not seized, in view of a principal, present or potential dispute to which it relates; that the department of Val-de-Marne rejected, by letters of February 23, 2001 not mentioning the ways and time limits for appeal, the claims that had been submitted by the applicant associations for the damage they would have suffered due to the undervaluation of the physical operating costs of the public college externship covered by the department during the years 1996 to 2000; that the Sacré-Coeur Heart and Others Management Authority argues, through a serious dispute with examples, that some of these expenses, in particular relating to insurance costs, maintenance of green spaces, acquisition of school equipment or furniture, or the induced staff costs, appear in budget chapters other than the one specifically dedicated to operating grants awarded to public colleges and that, therefore, only items of cost accounting would make it possible to determine the exact amount; that the explanations provided by the department are not such as to establish, in the state of the proceedings, that these allegations would be unfounded; that, as a result, an appraisal for the purpose of determining the amount and purpose of the expenses incurred by the department for the benefit of public colleges between 1996 and 2000 is of a useful nature " (EC, June 23, 2006, Management organization of the course of the Sacred Heart, n ° 259290- CAA Nantes, December 16, 2010, Mrs. Danièle A, n ° 09NT01386).
THE MEASURE OF EXPERTISE MUST BE USEFUL
The expertise measure sought must have a technical and / or financial utility for the resolution of the dispute between the parties to the proceeding.
Thus, for example, the administrative court considers that a judicial expert's report in order to ascertain the financial loss suffered by an unsuccessful candidate is useful, since its object and effect is to seek solutions and to enlighten the technical data of a dispute (TA Poitiers, June 17, 2010, Philippe Védiaud Advertising Company, req.no. 0900111).
GUIDE OF THE EXPERT BEFORE THE ADMINISTRATIVE TRIBUNALS
AND THE ADMINISTRATIVE COURSE OF APPEAL 2010
Including Decree No. 2010-164 of 22 February 2010 on the jurisdiction and functioning of the administrative courts
Practical application of the tasks entrusted by the administrative courts
Update of April 02, 2011 (a)
Under the leadership of Bernard Leiceaga, the National Council has updated the expert's guide before the administrative tribunals and the administrative courts of appeal to help the experts in the accomplishment of their missions
This new edition is particularly timely because of the reform of the administrative procedure that occurred by the decree of 22 February 2010.
In a world in constant evolution, the law is not immune to the movement and justice experts have naturally been associated with it. It is in this perspective that we should pay tribute to the judges and members of the Administrative Procedure Committee of the National Council who, by the publication of such a work and its constant training activities, work for the updating of knowledge of justice experts.
In this collection, the expert, more and more often responsible for handling a growing volume of complex cases in a limited time, will easily explore the specificities of the administrative procedure, through the main stages of his intervention.
This guide also takes into account new developments and will help extend the impact of a work tool that has become a reference work.
It is likely that as an occasional contributor to the public service of justice, the experts appointed by the administrative courts will be able to make the most of this book.
President of the National Council
The code of administrative justice, applicable to date, does not precisely define the status of the expert. The jurisprudence of the State Council gives the expert the status of collaborator of the public service of justice (EC, sect., 10 February 1967, ECR, pp. 70 et seq., 26 February 1971, Aragon, ibid, p. 172).
Appraisal before the administrative courts and the administrative courts of appeal is governed by the provisions of the Administrative Justice Code, which differ in several respects from the provisions applicable to expert reports ordered by the courts.
We can note according to article R 621-2 of the CJA:
" The President of the Administrative Court or the President of the Administrative Court of Appeal, the case, or, at the Council of State, the president of the litigation section, chooses the experts and set the time limit within which they must file their report with the registry.
In all cases, the choice of the expert belongs to the head of the jurisdiction or to the magistrate whom he has appointed in charge of questions of expertise.
The expert is at the service of the judge who committed it in order to clarify it technically on questions of fact, object of a clearly defined mission.
Administrative tribunals such as administrative courts of appeal remain free to appoint any professional of their choice, possibly chosen from the lists established by the judicial authority or from the tables established by the administrative courts and the administrative courts of appeal.
We will recall the article R 122-25-1 of the code of administrative justice (decree n ° 2006-964 of the 01/08/2006, in force on 01/09/2006), applicable to the Council of State which indicates:
" It can be established each year, for the information of the judges, a national table of experts at the Council of State, drawn up by the president of the litigation section, after consultation with the presidents of the administrative courts of appeal. "
Article R 222-5 of the Code of Administrative Justice, applicable to administrative courts and administrative courts of appeal, states:
" Each year, the President shall, if necessary, draw up the table of experts near the jurisdiction he presides "
Upon his appointment, and after having taken the oath to fulfill his mission with conscientiousness, objectivity, impartiality and diligence, the expert has the status of collaborator of the public service of the justice, agent of the State, during the duration of the mission which has been entrusted to him.
He can accept a mission only if he considers that it falls within the scope of his powers, that he can fulfill it within the prescribed time, otherwise he runs the risk of being condemned to damages and interest (Article R 621-4 of the CJA)
At the end of the mission, a tax order is issued by the president of the jurisdiction that appointed the expert. In case of proven insolvency of the unsuccessful party and under certain conditions, as an occasional collaborator of the public service of justice, the expert has an action against the State (EC sect., 26 February 1971, Aragon, ibid, p. 172).
The responsibility of the State could be sought for dysfunction of the public service of the justice in the case of delay of an expert already overloaded or in the case of incompetence.
Despite his status as a collaborator of the public service of justice, the expert is not entirely relieved of his responsibilities: he can be sought for acts that are criminally reprehensible, personal mistakes that can be detached from the service and if he does not fulfill his mission he may be sentenced to frustrating costs and damages.
With regard to the possible blaming of his liability, it is imperative that the expert take out professional liability insurance with a subsequent guarantee; in administrative matters, the limitation period is common law (5 years), according to the recent law of 17 June 2008.
His status as a collaborator of justice also requires him, in addition to maintaining the level of his technical and scientific knowledge, to fully master the procedural rules of expertise through training and their regular follow-up.
This guide has been updated taking into account Decree No. 201 0-1 64 of 22 February 2010 on the powers and functioning of the administrative courts.
The mission of the expert
The limits of the expert's mission
A. The expert may be assigned only to examine and clarify questions of fact in his field of science.
The expert is thus regularly instructed:
- to collect documents, to visit places, to describe a process, to audition parties or third parties, for example, knowledgeable people.
- to give its opinion on a causal link,
- to propose the evaluation of a percentage of incapacity or the gravity of a cosmetic prejudice or a painful pretium, the amount of a material or financial damage ...
- to give the judge information on whether the work or surgery was carried out in accordance with the rules of art,
- to give all the facts, in particular concerning the imputability of the damage, allowing the judge to distribute the responsibilities.
B. On the other hand, the expert can not be asked to examine, let alone decide questions of law.
He can not :
- to pronounce on the qualification of fault;
- to pronounce on legal responsibility;
- decide whether or not a damage charge is recoverable.
The designation, the oath, the unfolding
1. The designation
A. Who can be chosen as an expert?
The administrative judge freely chooses the person who seems to him the most qualified according to the questions on which he needs to be enlightened. The Code of Administrative Justice allows the President of the Litigation Division of the State Council, as well as each President of the Administrative Court or Administrative Court of Appeal, the possibility of drawing up an annual table of experts in his jurisdiction. . However, among the courts and tribunals, only certain courts do so. Even when a table exists, it is only informative: the judge remains free to appoint a professional who is not there.
However, according to the case-law, the judge can not designate as an expert a person suffering from a general legal incapacity, for example because of a bankruptcy. In addition, where the law reserves certain acts to authorized persons, such as in medical matters, the appointed expert must have the required qualification. Finally, the judge's practice
to appoint as expert a natural person, and not the company to which, if any, he belongs.
It is important that the expert thus designated can offer all the guarantees of impartiality, technical and procedural training and insurance necessary for the proper conduct of the operations entrusted.
The National Council of Justice Experts Companies (CNCEJ), within the scope of its powers, provides the companies of experts with the necessary support to enable them to meet the expectations of judges.
B. When and how is the expert appointed?
" Art R 621-1-1 - The president of the court may designate within his jurisdiction a magistrate responsible for matters of expertise and the monitoring of appraisal operations.
" The act appointing the magistrate responsible for the expertises may delegate to him all or part of the powers mentioned in Articles R 621-2, R 621-4, R 621-5, R 621-6, R 621-7, R 621-11 , R 621-12, R 621-12-1 and R 621-13.
" This magistrate can attend the operations of expertise. "
An expert may be appointed either, in summary, because a person seizes the judge specifically to obtain an expertise, even before seizing the dispute, or, during the trial of the case, because the judge believes that it needs to be more fully informed about some of the technical aspects of the dossier.
• In summary
The judge hearing the application for interim relief decides to use the expert report, defines the assignment, sets the number of experts - usually one -, appoints the expert and sets the deadline for the expert to fulfill his / her mission.
- technical advice requested from a consultant - expertise
When a case is being adjudicated by the court or tribunal
The judgment or judgment orders the appraisal, defines the mission and sets the number of experts, which is usually one.
The president of the court or court appoints the expert and sets the time limit for performing his duties.
In practice, according to the courts, for an expert report, as before saying right, the expert is contacted by the appraisal service of the administrative court of appeal or the administrative court to inform him of the mission, parties involved and know his availability.
This contact makes it possible to avoid any delay in the establishment of the order and the successive replacements of experts overloaded, not having the skills or knowing one of the parts.
2 - The oath When he receives his mission, the appointed expert must take the oath in writing and "Commits to accomplish his mission with conscientiousness, objectivity, impartiality and diligence" according to article R.621-3
The oath is lent for each mission.
It is the acceptance of the mission and the time allowed to accomplish it.
The form is sent to the expert by the registry at the same time as the decision which designates it and within three days of the notification - that is, in fact by return mail - the expert sends the transcribe the form of the oath completed and signed.
3 - The definition of the mission
The mission of the expert is defined by the order or the judgment which decides the recourse to the expertise. Its contours must be rigorously respected: only the jurisdiction has jurisdiction to define it.
The judge hearing the application for interim relief may, at the request of one of the parties, extend the expert assessment mission to examine technical questions or make the appeal in question or the dismissal of other persons within two months follow the first expert meeting.
The expert may make the same requests to the interlocutory judges at any time.
The judge hearing the application for interim measures must receive the parties' observations before any amendment. He will be able to discuss these questions in contradictory session.
" Art R 532-3 - the judge hearing the application for interim measures may, at the request of one of the parties formed within the two months following the first expert meeting, or at the request of the expert formed at any time, extend the expertise to persons other than the parties originally designated by the order, or dismiss one or more of the parties so designated.
" It may, under the same conditions, extend the mission of the expertise to the examination of technical questions which would prove indispensable for the proper execution of this mission, or, conversely, reduce this mission if some of the researches envisaged appear useless.
" Art R 532-4 - The judge of interim relief can grant the request provided for in the first paragraph of Article R 532-3 only after having put the parties and where appropriate the persons to whom the expertise must be extended in to comment on the usefulness of the requested extension or reduction.
" He may, if he considers it appropriate, discuss the issues raised by this request during the meeting provided for in Article R 621-8-1 "
At the end of the mission, if the expert remains below what has been requested, the judge will invite him to complete his report. If it goes beyond, it can not be paid for the work done in excess, even if the jurisdiction would find useful information.
4 - Conciliation
Pursuant to Article R 621-1, the judge may entrust the expert with the task of trying to reconcile the parties at the end of the expert's report, even if the parties have not seized the court of a request in this sense.
" Art. R.621-1 supplemented by: "the mission entrusted to the expert may be aimed at reconciling the parties"
The expert can not take such an initiative where it is not provided for by the order for interim relief or the judgment, but the parties may, if necessary, ask the judge for such an extension of the mission.
If the parties come to conciliate, the expert submits his report to the magistrate who committed it, taking care to append the protocol signed between the parties, along with his bill of honor.
" Art R 621-7-2 - If the parties come to conciliate, the expert finds that his mission has become irrelevant, and immediately reports to the magistrate who committed it.
" His report, together with his bill of costs and fees, must be accompanied by a copy of the minutes of conciliation signed by the parties, showing the attribution of the burden of expertise fees.
" Fault for the parties to have settled the question of the charge of the expert's fees, it is proceeded, after the taxation mentioned in the article R 621-11, by application of the articles R 621- 13 or R 761-1 , According to the case. "
5. Conduct of the mission
Throughout the operations, the expert must maintain - in form and even more in substance - a strict impartiality, which is a legal obligation and which, with his technical competence, is his authority.
5.1. The convocation of the parties
- The first convocation is sent to the parties by registered letter, and to their representatives, by simple letter. It is prudent to add "with acknowledgment of receipt". If subsequent meetings are necessary, this formality is unnecessary for the parties present or represented when the date has been fixed by mutual agreement and recorded in writing, in particular in the minutes of meetings notified to the parties.
The notice must be sent at least four days in advance. This is the minimum provided by the Code and it is reasonable, except in the case of urgency, to allow the parties a longer time (depending on the type of mission).
The postponement is not legal except in the case of force majeure or legitimate reason: the expert opinion is contradictory as soon as the parties have been duly convened, even if they have failed for no legitimate reason.
5.2 Incidents that may occur in connection with the designation of the expert
A. The expert wishes to join a sapitor
However, if the expert wishes to resort to the appointment of a sapitor, he must first seek the authorization of the head of court (the judge referred interim). In this case, it should specify the issues to be decided by the sapitor and give an estimate of the additional cost involved. He may propose the name of the sapitor he wishes to see designated or indicate the precise qualification of the person sought.
If the expert requires the use of assistants or laboratories for material services (eg analyzes), it is advisable to carry out preliminary estimates or, if the amount is high, to put several providers, and to inform the parties. The expert must ensure that the expertise will be made at the least cost and the president of the court is entitled to deny him the reimbursement of unnecessary or excessive costs.
It will then be up to the expert to indicate to the sapitor precisely - and preferably in writing - the questions to which he must respond.
Finally, it is important not to confuse, although the border is sometimes tenuous:
the use of a sapitor who performs part of the expertise and replaces the expert on one or more points;
the use of assistants or laboratories responsible for material services, measurement or analysis, for which no authorization from the president of the court is necessary.
B. The expert or sapitor already knows the case
The expert who has had knowledge of the case for which he is designated or is in the process of being appointed must make it known to the president of the court before accepting the assignment. The chair appreciates if there is an impediment. It is the same for a possible sapper.
Having already been appointed by court in the same case does not constitute an impediment. On the other hand, an expert opinion would be irregular if, for example, the doctor appointed as expert had already examined the file or the person in a private capacity and formulated a diagnosis on the origin of the disorders which are the object of the litigation.
C. The Expert or Sapper Is Refused or Recusable
If there is a serious reason to question the impartiality of the expert (or sappeur), because of a particular relationship with one of the parties, the latter must immediately inform the President of the jurisdiction which has appointed him, who will decide whether he should replace him.
A party may also request the disqualification of the expert (or sapper). It must do so by request, motivated and justified, addressed to the court before the beginning of the appraisal operations or as soon as the cause of the challenge is revealed.
The expert will receive a copy of the request for disqualification and must abstain from any operation until it is decided.
Within eight days of this communication, the expert indicates whether he agrees to be recused, or if he opposes, mentioning in this case the reasons for his position.
If he objects, it is the court that will decide whether to grant the request for recusal in a public hearing of which the experts and the parties are notified.
The expert is not allowed to challenge the decision which rejects it.
" Art R 621-6-1 - The request for challenge filed by a party is presented to the court that ordered the expert assessment. If presented by an agent, the latter must have a special power.
" It must barely declare inadmissible the reasons which support it and be accompanied by the proper documents to justify it. "
" Art R 621-6-3 - Within eight days of this communication, the expert makes known in writing his acquiescence to the challenge, the reasons for which he opposes it. "
" Art. R 621-6-4 - If the expert acquiesces in the challenge, he is immediately replaced.
" The expert is not allowed to challenge the decision which rejects it. "
" As soon as he has communicated this request, the expert must abstain from any operation until it has been decided. "
The grounds for recusation are assessed by the administrative court, drawing inspiration from the provisions of Article L. 111-6 of the Code of Judicial Organization applicable to the judicial courts.
These are the various links that may exist between the expert and one of the parties, and could cast doubt on the impartiality of his expertise: relationship, alliance or existence of a claim or a claim. debt, the bond of subordination, the existence of a past or present lawsuit, friendship or notorious enmity, etc. When the State is a party to the dispute, the links are not appreciated in relation to the State as a whole but in relation to the administration directly concerned and its officials.
D. The expert does not accept the mission
It is designated another. This is all the more rare in that, in general, prior contact has been made with the expert to obtain his consent and to agree on the deadline for completion of the mission.
However, if, on reading the assignment as detailed in the order or judgment and the time indicated, the expert considers that he can not carry out the expert appraisal operations, it is preferable that he immediately asks for his replacement; indeed, the signature of the sworn form implies that the expert agrees to complete the assignment in its entirety and within the time indicated.
E. The expert is failing
This is an expert who has accepted the assignment and does not fulfill it or does not respect the deadlines.
- At the request of a party, it may be ordered by the court - after having been able to explain itself - to reimburse the costs (that is to say unnecessarily incurred) and to pay damages.
- If necessary, he is replaced by the judge who appointed him. He is then bound to return, in accordance with the instructions given to him by the court, all the documents communicated to him for the exercise of his mission.
R.621-4 "An expert who, having accepted his mission, does not fulfill it or who is not filing his report within the time fixed by the decision may, after having been invited by the president of the court to present his observations, be replaced by a decision of the latter. He may also be sentenced by the court, at the request of a party, and at the end of an adversarial procedure, to all the frustrated costs and to damages "
5.3 The contradictory character of the appraisal operations
A. Common law
The parties are (by the summons or convocations) able to attend all the expertise operations: site visit, sampling, on-site measurements, examination of the parties; there can not be a separate symposium with a party.
The parties receive all the documents submitted to the expert (on his request or spontaneously, it does not matter) including the comments that would be sent to him by a particular party: there is no distinction to be made between the documents submitted by third parties or by the parties.
When information is covered by a secret protected by law, the expert must notify the party that holds it to accept, by giving it, that this information be communicated to the other party, because of the contradictory nature of the procedure. In the absence of such acceptance, it can not communicate the information to the expert.
The written or oral submissions of the parties should be summarized in the final report
Note : The Code of Administrative Justice does not provide for the drafting of a "pre-report" as part of an expert assessment ordered by an administrative court. However, if the expert chooses to use a pre-report, such a decision shall not have the effect of delaying the filing of the expert report. In particular, the expert must fix short deadlines for the parties to submit their observations and can not justify by their absence a delay in submitting the final report.
Since the trial is not the "thing" of the parties, the expert is at the service of the judge to whom he owes his answers and not in the service of the parties.
It did not seem desirable to include in the Code of Administrative Justice the provisions of the second paragraph of Article 276 of the Code of Civil Procedure; to compel the expert to take into account the statements of the parties, it was feared that, during the expert appraisal, there would be a debate on the conclusions of the expert, a debate which has no place, in the conception of the administrative justice, than before the judge.
The report must record the observations made by the parties (article CJR 621-7 of the CJA), even the oral observations must be recorded (Conseil d'Etat 24/02/1995, Stihle). It is not forbidden for the expert to anticipate the debate which will be born on his report, nor to decide on the contents of the statements he has received, as long as they bring a relevant element in the debate. It may set a deadline for the parties to make their observations or complaints and to no longer take into account those made after the expiry of this period. The expert is master of the conduct of the operations of expertise.
B. Medical expertise :
The contradictory must be combined with the respect due to the medical secret:
The examination of the patient is carried out without the presence of the other parties, except if the latter are represented by a doctor (with the agreement of the patient);
On the other hand, the parties must be aware of the expert's findings and conclusions and be in a position to comment. They must also be convened if the expert examines parts.
5.4 Incidents that may occur during the appraisal
A- The case of documents retained by one of the parties
It may happen that the expertise involves the production of parts by one of the parties and that the latter refuses to do so. In case of difficulty, the expert informs the president of the court that can order the production of documents under penalty, authorize the expert to override or file his report as is.
" Art R 621-7-1 - The parties must immediately submit to the expert any documents that he deems necessary for the accomplishment of his mission.
" In the event of failure of the parties, the expert shall inform the president of the court who, after having provoked the written observations of the recalcitrant party, may order the production of the documents, if necessary under penalty, authorize the expert to override, or to file its report as it is.
" The chairman may also examine the problems raised by this deficiency during the meeting provided for in Article R 621-8-1.
" The court draws the consequences of the lack of communication of documents to the expert. "
B- The duration of operations
The duration of the expertises greatly contributes to the length of the proceedings as a whole. The respect of the deadline given to the expert is therefore an absolute obligation. To meet this deadline, it is up to him to be firm with regard to the parties who
would have a delaying attitude and, in case of serious difficulty, to inform the president of the court in writing.
The time limit initially set by the President of the court or the judge hearing the application for interim relief was determined on the basis of the information in the file. Depending on the evolution of the appraisal operations, the expert may however request the extension of the deadline. This request must be made in writing and be reasoned. The judge will do so if it appears reasonable in the circumstances of the case.
In the event of undue delay, the expert may be considered as having failed and be replaced.
C- Relations with the jurisdiction during the appraisal operations
The appraisal operations are carried out under the sole responsibility of the expert who must ensure himself to ensure their adversarial nature towards the parties.
The president of the court may organize one or more sessions to ensure the smooth running of these operations.
In these contradictory sessions, issues related to deadlines can be analyzed as well as points concerning the disclosure of documents, the payment of provisional allowances and the scope of the expert report.
" Art. R 621-8-1 - During the course of the appraisal operations, the president of the court may organize one or more sessions to ensure the proper conduct of these operations. At this meeting, the following may be examined, excluding any point relating to the substance of the expert's report, questions relating to the time required for the execution of the report, the submission of documents, the payment of provisional allowances, or, in referred to the scope of the expertise.
" The parties and the expert are convened at the meeting referred to in the previous paragraph, under the conditions set out in Article R 711-2.
" A summary of the conclusions of the discussions is drawn up. This statement is communicated to the parties and to the expert and placed on file.
"The decision to organize such a meeting, or refusal to organize it, is not open to appeal. "
D- Sanctions of irregularities in the course of operations
1 era hypothesis: the irregularity is not regarded by the judge as likely to affect the reliability of the findings and conclusions of the expert. The report loses its authority of report of an expert mandated by the justice but remains a part of the file, subjected to contradictory discussion, which can be used by the judge in the same way as the other pieces of the file.
2nd hypothesis: the irregularity is of such a nature or gravity (for example a collusion between the expert and a party) that it deprives the report of any reliability. The latter is then simply discarded.
The provisional allowance
In terms of administrative expertise, the deposit does not exist. But it is open to the expert to request the payment of a provisional allowance.
This request must be addressed to the judge. It is forbidden to claim from the parties amounts other than those allocated by the judge.
Where this allowance is granted, in the absence of payment by the party responsible for it in the month following its notification, at the request of the expert, the president shall issue a formal notice.
After this new deadline, in the absence of a regulation, the expert is called upon to submit his report limiting himself to the statement of the diligences carried out and of this deficiency with his note of expenses and fees.
" Art R 621-12-1 - The absence of payment, by the party in charge of it, of the provisional allocation, in the month which follows the notification of the decision mentioned in the article R 621-12, gives at the request of the expert, a formal notice signed by the president of the court.
If the deadline set by the latter is not respected, and if the expert report was not filed on that date, the expert is called by the president to file, with his bill of costs and fees, a report limited to the finding of the diligences carried out and of this deficiency, whose jurisdiction draws the consequences, in particular for the application of the provisions of the second paragraph of the article R 761-1
The president may, however, before inviting the expert to produce a deficiency report, submit the incident to the meeting provided for in article R 621-8-1. "
1. The provisional allocation in the case of an expert assessment ordered by judgment :
If it is an expert opinion ordered by a judgment before saying rightthe tax order does not designate the party responsible for the fees of the expert. At the request of the expert, the president of the court makes an order of provisional allowance which designates the party or parties who will assume the payment.
In case of non-payment, always at the request of the expert, the president of the court signs a formal notice to pay within a fixed time (article R 621-12-1 CJA).
The purpose of the provisional allocation is to enable the expert to receive an advance on his fees and disbursements. Indeed the period of the judgment in which the expense of costs will be fixed may be variable, the expert is guaranteed any expectation of payment of his fees.
The provisional allocation is often a means for the expert to protect himself against the insolvency or the bad will of the future debtor of the expenses and fees of the expertise.
2. The provisional allocation in the case of an expert report ordered in summary :
The application and award procedures are identical to the previous point. The deadline for granting a provisional allocation is undoubtedly the filing of the expert's report; after this deposit, the fees and fees due to the expert are fixed by the president of the jurisdiction and the allocation of a provision becomes unnecessary.
The report of the expert
1. The uniqueness of the expert report
It obviously poses no problem when - fortunately this is the general case - there is only one expert or when the expert, after having been authorized, has had recourse to a sapitor.
When there are several experts:
- they carry out the expert appraisal operations together, which means that, in the case where they have divided their tasks, they must at least confront their work and discuss it before concluding,
- they draw up a single report whose conclusions are in principle common except to mention in the report the reasoned opinion of each expert in case of disagreement.
2. The content of the expert report
The report includes the record of the physical operations and must record the written or oral observations made by the parties during the operations.
It then includes the reasoning which, in the opinion of the expert, justifies its conclusions.
Finally, it contains the conclusions of the expert who are his answer to the questions asked and only those ones. This answer should appear at the end of the report and be presented clearly and briefly. The most common practice is to pick up each of the mission's points in turn and briefly answer them, referring as necessary to the developments in the body of the report.
The report should not be burdened with reference documents (correspondence, exhaustive results of analyzes, bibliographies, etc.). These documents find their place in consolidated annexes, if necessary, in a separate volume. In addition, only useful parts must be attached to the report.
If the expert has been authorized to call on the assistance of a sapper, he is responsible for assessing the answers he provides and incorporating into his report the conclusions of the latter.
The work of the sapper must also be attached in its entirety as an appendix to the expert report.
3. Filing of the expert report
The report must be filed in the Registry within the prescribed time in duplicate The expert must notify the report in copy to the parties
With the agreement of the parties, this notification may be effected by electronic transmission
The parties are invited by the registry of the court to provide their observations within one month.
" Art. R 621-9 - The report is filed in the Registry in two copies. Copies are notified by the expert to interested parties. With their agreement, this notification can be made in electronic form.
" The parties are invited by the registry of the court to provide their observations within one month; an extension of time may be granted. "
Article R 621-10 of the same code is supplemented by the following words: "and in particular to pronounce on the observations collected pursuant to Article R 621-9. "
4. The personal appearance of the expert for further explanations
it can be decided by the court, it is exceptional in practice.
Fees, fees and disbursements
1. Fees and reimbursements of expenses to which the expert is entitled
Experts and Sapeurs are entitled:
- a fee,
- the reimbursement of their expenses and disbursements.
Fees (fees) correspond to the personal work of the expert or sapper: study of the file, setting the net of the report, deposit of the report, various approaches for the accomplishment of the mission.
The criteria for determining the amount of the fees are: the difficulty of the operations, the importance, the usefulness and the nature of the work of the expert or sapper. There is no scale.
B. Fees and disbursements
"Fees and disbursements" include transportation costs, postage costs, photocopying fees, etc. ... They must be accompanied by supporting documents. In particular, the expert can not claim for this purpose the reimbursement of a lump sum of overhead costs, corresponding to the deduction of part of his fixed operating costs: these costs are already included in his fees.
The expert must be careful not to expose excessive costs to the issue of the dispute because it would be exposed to the risk that they would not be reimbursed. In case of hesitation, it is possible for him to seize the judge who ordered the expertise.
Article R.621-11 of the Administrative Justice Code is amended as follows:
- - the second paragraph is replaced by the following:
" Each of them attaches to the report a statement of their expenses, expenses and disbursements. "
- - in the fourth paragraph are added, after the words:
" of the nature of the work provided by the expert or the sapper ", the words" and the steps taken to comply with the deadline mentioned in Article R 621-2 "
- - the following paragraphs are added:
- " If there are several experts, or if a sapper has been appointed, the order mentioned in the preceding paragraph clearly shows the amount of fees and fees fixed for each.
- " Where the president of the court intends to fix the remuneration of the expert at an amount lower than the amount requested, he must first inform him of the elements he proposes to reduce and the reasons he adopts for that purpose, and invite him to comment. "
Value added tax
Experts who are self-employed as service providers are subject to value-added tax under common law conditions.
In a response of January 15, 2008, the Minister of Justice, Minister of Justice, specified that " exempt medical benefits (VAT) can only be understood as those which cover a therapeutic purpose, that is to say, those whose purpose is to prevent, diagnose, treat and, as far as possible, cure diseases or abnormalities of health. As a result, the medical assessments carried out by retired doctors (or not) which do not have such a purpose can not benefit from the exemption tax, being specified by the fact that the doctor acts as expert committed by a court has no bearing in this regard. "
If the expert is liable for VAT, he must pay it both for his fees and the reimbursement of his expenses, the taxable amount being constituted by all sums received in return for the provision of services. He must, therefore, mention the amount of his fees and expenses exclusive of tax, and add VAT at the rate in force.
If the expert benefits from the basic deductible (when the annual amount of his fees and expenses does not exceed a limit fixed each year by the law of finances, according to article 293 B of the CGI), he is exempted from the payment of VAT ; he must then mention, on the one hand, the amount of his fees (without VAT) and, on the other hand, the amount of his VAT expenses included, since he will not be able to deduct the amount of the tax paid under them. The sum that will be allocated to it will correspond to the total of these two amounts.
2. The procedure: the case of an expert assessment ordered in the context of the judgment of a dispute on the merits
It is necessary to stop at two very distinct operations:
liquidation (or taxation) which fixes the sums to which the expert is entitled, the charge of the expenses of the appraisal, which designates the debtor of these sums.
It is made by the president of the jurisdiction whose so-called "taxation" order is an administrative act.
It intervenes after the filing of the expert report.
- - Taken after consultation with the president of the court, the order fixes the fees and stops, on justifying documents, the amount of the expenses and disbursements to refund to the expert. The chairman may ask the expert for further explanations if he considers it necessary.
- - The order need not be reasoned. It is executory as of its pronouncement and can be recovered against the private or public persons by the means of the common right. The debtor will be identified during the judgment on the merits.
This order may be contested by the parties and by the expert within one month of notification, before the court to which the author of the order belongs.
The petition is sent by the president of the court to an administrative tribunal in accordance with an allocation table issued by the president of the litigation section.
Except in the case of a clerical error which would require a simple correction, it is useless to ask the President of the jurisdiction to modify his order because he has no jurisdiction to do so.
The first paragraph of Article R 761-5 of the Administrative Justice Code is replaced by the following provisions:
" The parties, as well as, if necessary the expert, may challenge the order referred to in Article R 761-4 before the court to which the author of the order belongs.
Except when the order is issued by the president of the litigation section of the Conseil d'Etat, the petition shall be forwarded without delay by the president of that court to an administrative tribunal in accordance with an allocation table drawn up by the president of the litigation.
"The president of the jurisdiction to which the author of the order belongs or, in the Council of State, the president of the litigation section is called upon to submit written observations on the merits of the appeal. "
B. The cost of the expertise
It is determined by the judgment on the merits and - in principle - attributed to the losing party or who has withdrawn. It is this judgment that allows the expert to be paid.
C. Legal aid
When the costs are borne by a party admitted to legal aid, it is the State which must pay the costs - in whole or in part - according to whether the aid is total or partial. Regulation by the state obeys the same procedure as before the judicial courts.
3. The procedure: case of the referred
In this case, the tax order - unlike the previous case - designates the party or parties who will bear the costs and fees. It is executory as of its pronouncement and can be recovered against the private or public persons by the means of the common right.
At trial on the merits - if there is one - the judge may change the final charge of the expert's fees.
Art. R.621-13 of the Administrative Justice Code is amended as follows:
1 ° - the first paragraph is replaced by the following provisions:
"When the expert report has been ordered on the basis of Title III of Book V, the president of the court or court, after consulting, if necessary, the delegated magistrate, or, at the Council of State, the president of the The litigation section fixes the costs and fees by an order made in accordance with the provisions of Articles R 621-11 and R 761-4. This order designates the party or parties who will be responsible for these fees and expenses. It is enforceable as soon as it is pronounced, and can be recovered against private or public persons by common law means. It may be the object, within one month from its notification, the recourse provided for in Article R 761-5. "
2 ° - the second paragraph is replaced by the following provisions:
" In the cases mentioned in the first paragraph, the provisions of Articles R 621-12 and R 621-12-1 may be applied. "
It is up to the expert to directly ask the person mentioned in the judgment or order to pay him the amount of fees and reimbursements of expenses determined by the judge.
A. In the event of the debtor's ill-will
If the assessment was ordered in the context of a dispute on the merits, it is the judgment that decides the dispute that designated the party to bear the costs of expertise. If this party is a public person, the expert may apply to the assigning accountant (for the State) or to the prefect or the supervisory authority (for a local authority or a public institution) on the basis of the Article 1 of Law No 80-539 of 16 July 1980, for payment to be made.
If the debtor is a private person, the expert may apply to a bailiff who will continue the enforcement of the debt.
If the costs have been charged to one of the parties by the taxation order (case of the expert report ordered in summary proceedings), the order determining the debtor party is enforceable as soon as it is pronounced and can be recovered against private or public persons by common law means.
B. In the event of insolvency of the debtor
If the debtor is insolvent, the expert has, on the basis of no-fault liability, an action against the State, because of his status as a collaborator of the public service of justice. He must prove that he has previously performed all the necessary steps to obtain payment of his costs and fees by the debtor and that he has been unable to recover them. Indeed, the debtor must be truly insolvent and not only in bad faith.
Requests for State responsibility must be addressed to the Council of State, for the attention of the Secretary General of the Council of State, with a view to an amicable settlement.
1 - The technical opinion
The Judging Panel may instruct the Consultant to provide a simple technical advice on a few specific points. The case file is not given to the consultant who does not have to operate according to an adversarial procedure.
The notice is recorded in writing. It is communicated to the parties by the court. The statement of costs and fees is attached to the notice.
In Chapter V of Title II of Book VI of the same Code, after Article R 625-1, two articles R.652-2 and R.625-3 are inserted worded as follows:
" Art. R 625-2 - Where a technical issue does not require complex investigations, the judgment may charge the person who commits to provide him with a simple notice on the points it determines. The consultant, to whom the record of the proceeding is not not submitted, does not have to operate in accordance with an adversarial procedure with regard to the parties. "
" The notice is recorded in writing. It is communicated to the parties by the court.
" The provisions of Articles R 621-3 to R 621-6, R 621-10 to R 621-12-1 and R 621-14 are applicable to technical opinions. "
" Art. R 625-3 - The training panel may invite any person whose competence or knowledge would be such as to provide useful information on the solution to be given to a dispute, to make general observations on the points that it determines.
" The notice is recorded in writing. It is communicated to the parties.
" Under the same conditions, any person may be invited to make oral submissions to the panel responsible for the investigation or the formation of the judgment, the parties duly convened. "
2- Buildings threatening ruin - (IMR)
Missions targeting ruinous or unhealthy buildings may be ordered by the administrative courts under Articles L51-1-1 et seq. And L521-1 et seq. Of the Building and Housing Code.
These missions type IMR (buildings threatening ruin) are carried out in the emergency according to Article L511-3 of the same code.
The turnaround time is 24:00.
It is therefore necessary that the registry informs you by phone to have to perform this type of mission to immediately communicate your availability.
As the rules of recusation are equally applicable, it is important to know the parties involved and to inform the registry of any difficulties.
Before the notification by the court of the order, by mail with AR, the mission is sent by computer broadcast.
Upon receipt, the expert makes an appointment by telephone with the applicant who will inform other parties of the day and time of the contradictory meeting on the premises.
At the end of the meeting, the expert draws up his report, which he notifies directly to the parties. He sends two copies to the registry of the Tribunal which committed it with his bill of costs and honorary.
He can not go beyond the scope of his mission. If necessary, during his visit, he is obliged to "report other facts revealing the insecurity of the building"; in these circumstances, the Mayor may use another procedure to have them analyzed.
The report of the expert can conclude that there is a serious and imminent danger or a simple danger. As evacuation of the building can be ordered, the report must be accurate.
Depending on the case, the mayor orders the provisional measures necessary to guarantee the security and fixes the time of realization of this work. He may send a copy to the expert for information.
According to the mission, the expert may be called upon to verify the implementation of these provisional measures and their date of completion. It can not be a project management mission or final work.
The administrative court establishes a taxation order which fixes the amount and specifies the party who must pay it.
3 - Public inquiry
The role, mission and report of the Investigating Commissioner are not developed in this guide.
It is important to stay close to the president of the jurisdiction to follow his instructions for the execution of the mission entrusted, in compliance with the code of administrative justice.
Members of the Administrative Procedures Committee:
- President Bernard Leiceaga Member of the Board of Directors
- Members Jean Paul Beti Chairman of the company of experts at the Administrative Court of Paris-Versailles
- Michel Chanzy Member of the board of directors
- Bruno Duponchelle Secretary General of CNCEJ
- Chairman of the company of experts at the Administrative Court of Douai
- Robert Giraud Former Chairman of the Company of Experts at the Administrative Court of Marseille
- Gilbert Patierno Former Chairman of the Company of Experts at the Administrative Court of Douai
Opinion given on the Guide by Mr. DE FOMBRESSIN, Legal Adviser CNCEJ
The Guide of the expert was given to Mr STIRN, State Councilor, President of the Litigation Section of the State Council on 02/06/2010