When there is a risk that evidence may be lost, Article 145 of the Code of Civil Procedure offers a way to prevent it. valuable tool. This procedure makes it possible to organise the preservation of evidence even before legal action is taken. Its legal mechanism needs to be clearly understood.
Article 145: an essential preventive mechanism
Article 145 of the Code of Civil Procedure allows legally admissible measures of inquiry to be taken before any trial. Case law describes this procedure as a "measure of inquiry in futurum".
The wording is clear: "If there is a legitimate reason to preserve or establish, before any trial, proof of facts on which the outcome of a dispute may depend, legally admissible investigative measures may be ordered at the request of any interested party, on application or in summary proceedings.
What's in it for you? Anticipating potential litigation by securing evidence that might otherwise be lost.
Conditions for obtaining a probationary order
To obtain a preventive investigation measure, several conditions must be met:
- The absence of a trial on the merits already underway
- A legitimate reason
- The relevance and usefulness of the facts to be proven
- A legally permissible measure
The measure must be requested prior to any trial. As the Court of Cassation stated in a ruling of 21 June 1995, when a court is already seised of the merits of the case, Article 145 becomes inoperative. Article 812 of the Code of Civil Procedure must then be used for an order on a general application.
Legitimate grounds": the cornerstone of the system
The notion of "legitimate reason" is the fundamental requirement. It is assessed on the basis of two criteria:
- The usefulness of the requested measure
- The applicant's legitimate interest
Case law generally recognises a legitimate reason when the measure can contribute to the resolution of a potential dispute. A ruling by the 2nd Civil Chamber on 2 July 2009 rejected an application for lack of legitimate reason, confirming the importance of this condition.
Case law recognises the legitimacy of a company suspecting unfair competition to request the appointment of a bailiff to ascertain facts or take accounting documents. An employer may also obtain access to data on an employee's work computer in the event of well-founded suspicion.
Urgency: a fluctuating criterion in case law
The question of urgency has long divided case law. Three Court of Cassation rulings on 7 May 2008 caused a surprise by requiring this condition. This position contradicted previous case law initiated by a decision of the Mixed Chamber on 7 May 1982.
The turnaround came on 15 January 2009, when the 2nd Civil Chamber of the Court of Cassation clearly stated that "urgency is not a prerequisite for ordering, on request, the investigative measures on the basis of Article 145 of the Code of Civil Procedure".. This position was confirmed by subsequent rulings on 9 April 2009 and 2 July 2009.
Referral or application: a strategic choice
Article 145 provides for two procedural options: summary proceedings (adversarial) or applications (non-adversarial).
The application procedure remains subsidiary. It is justified only by the existence of circumstances requiring a derogation from the principle of contradiction. These circumstances may be :
- The risk of destruction of evidence (2nd Civil Chamber ruling of 8 December 2009)
- The impossibility of identifying the opponent
- The need for surprise
The judge assesses these circumstances on a case-by-case basis. A typical example is in the case of adultery, where case law traditionally allows a derogation from the adversarial principle.
Civil statute of limitations: suspensive effect of investigative measures
Since the Act of 17 June 2008 reforming the civil statute of limitations, preventive investigative measures have had the effect of suspending the statute of limitations. Article 2239 of the Civil Code states that "the period starts running again, for a period of not less than six months, from the day on which the measure was implemented"..
This provision protects the creditor against the running of the statute of limitations during the probationary period. However, this suspensive effect will be lost if the order is revoked or set aside.
Limits: privacy and business secrecy
Investigative measures in futurum sometimes come up against fundamental rights such as privacy or business secrecy.
According to a ruling by the 2nd Civil Chamber on 8 February 2006, business secrecy is not an absolute obstacle. It simply represents a parameter in the assessment of the legitimate reason.
With regard to employees' private lives, a landmark ruling by the Labour Court on 23 May 2007 validated access to personal data on a work computer, reversing the Nikon case law of 2001. The bailiff had carried out his task in the presence of the employee, thereby ensuring a minimum of adversarial proceedings.
Case law also validates the finding of adultery ordered on petition, considering that it is a legitimate invasion of privacy, linked to the obligation of fidelity between spouses (article 212 of the Civil Code).
A delicate balance must therefore be struck between probative effectiveness and the protection of fundamental rights.
In day-to-day litigation, Article 145 of the Code of Civil Procedure remains a strategic tool. Handled with care by a competent lawyer, this procedure makes it possible to secure crucial evidence and, in some cases, to make the case.reversing the balance of power in a dispute.
Our lawyers can help you put in place the evidence strategy best suited to your situation. Don't wait for the evidence to disappear. Contact us for a personalised consultation.
Sources
- Article 145 of the Code of Civil Procedure
- Article 2239 of the Civil Code
- Civ. 2e, 7 May 2008, no. 07-14.860, no. 07-14.857 and no. 07-14.858
- Civ. 2e, 15 January 2009, no. 08-10.771
- Civ. 2e, 9 April 2009, no. 08-15.507
- Civ. 2e, 2 July 2009, no. 08-15.508 and no. 07-20.968
- Soc. 23 May 2007, no. 05-17.818
- Civ. 2e, 21 June 1995, no. 93-19.107
- Joint Chamber, 7 May 1982, no. 82-12.462
- Com. 8 December 2009, no. 08-21.253
- BATUT, "Les mesures d'instruction in futurum", Report of the Court of Cassation for 1999
- CHABOT, "Remarques sur la finalité probatoire de l'article 145 du nouveau code de procédure civile", D. 2000, Chron. 256.
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