When the court appoints an expert, a precise legal mechanism is set in motion to determine his remuneration. This system protects the parties while ensuring that the expert receives fair compensation for his work.
Prohibition of direct payment
The legal expert cannot receive payment directly from the parties. Article 248 of the Code of Civil Procedure lays down this fundamental rule: the expert, as an agent of the court, receives payment only from the party designated by the judge and only for the amount fixed.
This prohibition even extends to the simple reimbursement of expenses. Any breach could call into question the expert's impartiality.
There are exceptions for findings (article 251 of the CPC) and consultations (article 258 of the CPC), which are simple investigative measures that are not subject to the deposit system.
The central role of the judge
The judge who appoints the expert has complete control over his mission. In accordance with articles 232 et seq. of the Code of Civil Procedure, he sets deadlines, deals with any difficulties encountered and manages any incidents. He has exclusive jurisdiction over all decisions relating to provisions and fees.
Provisions and how they work
When appointing the expert, the judge fixes an advance as close as possible to the foreseeable final remuneration (article 269 of the CPC). He designates the party who must deposit this sum at the court registry within a specified period.
If several parties are liable, the judge will specify the proportion for each. He may also stagger the deposit periods.
Failure to comply with the time limit for the deposit shall render the expert assessment decision null and void. However, the judge may, on a reasoned request, extend this time limit or declare it null and void.
Advance payments and additional provisions
During the expert appraisal, the expert may request a deposit if the complexity of the case so requires. Article 280 of the CPC authorises the judge to allow a deduction from the deposit to cover certain essential expenses.
In practice, the most common option remains the deposit of an additional advance. The expert sends the judge a reasoned request explaining the progress of his work and the difficulties encountered. The taxing judge is free to decide on this request, regardless of which authority set the initial advance.
This additional provision becomes necessary when it determines the technical continuation of the operations, as in the case of clearance or asbestos removal work (Civ. 2e, 16 May 2013, no. 11-28.060).
The tax order: a specific procedure
The determination of experts' fees is not subject to the general rules governing the verification of costs. Article 284 of the CPC entrusts this task to the judge who appointed the expert.
The expert attaches his request for remuneration to his report and sends a copy to the parties. The parties have 15 days to submit their written observations to the expert and to the court.
The judge can only set the remuneration once the assignment has been completed. A mere preliminary report containing provisional conclusions is not sufficient (Civ. 2e, 15 April 2010, no. 08-21.832).
Article 284 of the CPC sets out the assessment criteria: diligence, compliance with deadlines and quality of work. The judge must respond to challenges relating to these elements (Civ. 2e, 2 February 2017, no. 16-13.224).
A sovereign assessment
The professional scales to which certain experts refer are only indicative for the judge. Case law consistently states that the determination of the remuneration of technicians is a matter for the judge's sovereign discretion (Civ. 2e, 27 June 2013, no. 12-17.910).
The judge may consider the expert's reputation and the complexity of the assignment, but must ensure that the remuneration remains proportionate to the task performed.
He is not obliged to limit the final remuneration to the amount of the deposit (Civ. 2e, 6 May 2021, no. 19-25.551), nor to refer to a prior estimate communicated by the expert (Civ. 2e, 14 September 2006, no. 05-11.230).
A possible reduction in remuneration
The judge may reduce the fees in the event of:
- Failure to act promptly (Civ. 2e, 27 April 1979, no. 77-15.312)
- Weaknesses in the report (Civ. 2e, 24 October 1979, no. 77-15.604)
- Unrequested and unnecessary work (Civ. 2e, 6 July 2000, no. 98-18.119)
- Excessive hourly rate for simple tasks (Civ. 2e, 22 March 2007, no. 06-11.770)
Before reducing the remuneration, article 284 of the CPC requires the judge to invite the expert to make his observations, an imperative obligation (Civ. 2e, 20 May 1992, no. 90-17.857).
A specific appeal procedure
Article 724 of the CPC provides for a single appeal against the decision setting the expert's remuneration: an appeal to the First President of the Court of Appeal.
This appeal may only concern the final remuneration, excluding decisions setting the advance payments. It may also concern the apportionment of the costs between the parties (Civ. 2e, 16 January 2014, no. 13-10.655).
The one-month period runs, for each party, from notification of the order, and for the expert, from notification by the court registry (Civ. 2e, 26 March 2015, no. 14-14.644).
Contrary to the ordinary law on costs, this appeal does not have suspensive effect (article 724 of the CPC). The costs order is therefore provisionally enforceable.
There is one particularity: if it is the first president who has taxed the technician's brief, the appeal is lodged with him, in the same way as an application for review.
These precise rules secure the remuneration of experts while offering the parties guarantees against any excesses. To maximise your chances in this type of procedure, do not hesitate to consult our firm. We will help you to assess the reasonableness of the fees claimed and, if necessary, to formulate a substantiated objection.
Sources
- Code of Civil Procedure: articles 232 et seq., 248, 251, 258, 269, 280, 284 and 724
- Court of Cassation, 2nd Civil Division, 15 April 2010, no. 08-21.832
- Court of Cassation, 2nd Civil Chamber, 16 May 2013, no. 11-28.060
- Court of Cassation, 2nd Civil Chamber, 2 February 2017, no. 16-13.224
- Court of Cassation, 2nd Civil Division, 27 June 2013, no. 12-17.910
- Court of Cassation, 2nd Civil Division, 6 May 2021, No. 19-25.551
- Court of Cassation, 2nd Civil Division, 14 September 2006, No. 05-11.230
- Court of Cassation, 2nd Civil Division, 27 April 1979, no. 77-15.312
- Court of Cassation, 2nd Civil Division, 24 October 1979, No. 77-15.604
- Court of Cassation, 2nd Civil Division, 6 July 2000, No. 98-18.119
- Court of Cassation, 2nd Civil Chamber, 22 March 2007, no. 06-11.770
- Court of Cassation, 2nd Civil Division, 20 May 1992, No. 90-17.857
- Court of Cassation, 2nd Civil Chamber, 16 January 2014, no. 13-10.655
- Court of Cassation, 2nd Civil Chamber, 26 March 2015, no. 14-14.644
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