Does your dispute involve a highly technical issue? A defect in a building, a complex medical assessment, a difficult accounting problem... In many situations, in order to make an informed decision, the judge needs the opinion of a professional with specific knowledge: this is the role of the legal expert. The expert's involvement is often a decisive stage in the proceedings, but it also represents a cost that can be significant.
As we have mentioned in previous articles, the expert's costs may form part of the "costs" - those listed by law and payable by the losing party. However, let's remember the essential condition: this only applies to the expert. designated by a court order (article 695, 4° of the Code of Civil Procedure). If you consult an expert on your own initiative, his fees will not be included in your costs.
This article sets out to demystify the role and, above all, the costs of the expert. judicial. How are they appointed? Who pays for his or her work, and how? What recourse do you have if you feel the expenses are excessive? Tackling these questions will help you to better understand and anticipate this often unavoidable aspect of the procedure.
When does a legal expert intervene?
When a dispute has technical aspects that go beyond the judge's legal knowledge, the judge has the option (and sometimes the obligation) to appoint an expert. This is an "investigative measure" provided for in articles 232 et seq. of the Code of Civil Procedure. The aim is simple: to obtain an objective technical opinion to enlighten the court before it rules on the dispute. The expert acts as a sort of highly qualified consultant, but his mission is strictly defined by the judge, and it is to the judge that he submits his report.
The tasks entrusted may vary in complexity:
- Simple findings material (describing the condition of a place, for example - article 249 CPC).
- A consultation on a specific point (article 256 CPC).
- A expertise complete, involving in-depth investigations, analysis of documents, interviews with the parties and the drafting of a detailed report (article 263 CPC).
The distinction is crucial: only the expert acting on judge's mandate has its costs potentially included in the costs. Using a private expert to prepare your defence is a strategy that may prove wise, but bear in mind that his fees will come under the heading of irreducible costs under Article 700, the reimbursement of which by the opposing party is only a possibility subject to the judge's discretion.
Payment of the expert: the initial advance ("consignation")
Aware that an expert appraisal can represent a significant cost and require major work to be carried out even before the report is submitted, the legislator has provided for a system of advances on the expert's remuneration: the provision.
In the case of expert appraisals (generally the most substantial assignments), the judge, in the very decision appointing the expert, orders one or more parties to pay a sum of money to the expert. transplant of the court. This is called a "deposit" (article 269 of the Code of Civil Procedure). This sum is blocked by the court registry and will be used to guarantee the expert's future payment. For more straightforward tasks such as simple consultation or observations, the judge may provide for the advance to be paid directly by the party appointed to the expert.
Who must pay this advance? It is up to the judge to decide which party or parties are responsible for making the deposit, and the deadline for doing so. He may divide the cost between several parties. Often, it is the party that requested the expert assessment that is designated, but this is not an absolute rule. The judge does not have to specifically justify his choice on this point, and this initial decision on the cost of the advance is not, in principle, subject to appeal.
One important point concernslegal aid. If the party designated to pay the advance benefits from it (even if the aid is granted after the decision ordering the advance), it is exempt from making this payment. In this case, the State will pay the expert's costs in advance, in accordance with article 40 of the law of 10 July 1991.
Finally, if the expert anticipates that the initial provision will be insufficient in view of the complexity of his mission or the difficulties encountered, he may ask the judge for authorisation to obtain an additional provision. complementary provision (article 271 CPC), which will generally be charged to the same party as the initial advance.
Setting the expert's final remuneration
Once his mission is complete, the expert files his report (or opinion) with the court registry. It is at this point that the expert's final remuneration is determined.
The expert submits a detailed claim to the judge, often called a "statement of costs and fees" or a "statement of fees", justifying the amount claimed. A copy of this request must be sent to the parties (and their lawyers). Once you have received this document, you have a statutory period of fortnight to send any written observations you may have on this claim for remuneration, both to the expert and to the court (or to the judge responsible for reviewing the expert opinion). Fifteen days may seem a short time, especially if the bill is complex, which is why it is so important to be responsive if there are points that you feel are questionable.
It is the judge who ordered the expert assessment (or the magistrate appointed to monitor its progress) who sets the final amount. This is done by means of a specific decision: thetax order (provided for in articles 255, 262 and 284 of the Code of Civil Procedure).
In making his decision, the judge does not simply endorse the expert's request. He must assess the remuneration according to precise criteria set out in article 284 :
- The due diligence actually performed by the expert (time spent, meetings, investigations, etc.).
- Le meeting deadlines to submit its report.
- La quality of the work (clarity, precision, relevance of answers to questions, etc.).
The judge has a sovereign discretion. He is not bound by the amount of the initial retainer: the final remuneration may be higher or lower. It may consider that the expert's request is justified in view of the complexity of the assignment, the number of documents analysed or the difficulties encountered.
Conversely, it can also reduce pay requested. This may be justified by a report submitted very late, work judged to be of mediocre quality, investigations going beyond the scope of the mission entrusted to the expert, or unjustified expenses. However, if the judge intends to reduce the amount requested by the expert, he must first invite him to comment on the reasons for the proposed reduction (article 284, paragraph 3 CPC). This is an essential guarantee of adversarial proceedings for the expert.
What does the expert's remuneration include?
The amount set by the judge in the tax order generally covers two types of costs:
- The fees Fees: Fees are paid for the expert's time and technical and intellectual expertise. They depend on the nature and complexity of the assignment, the level of qualification and sometimes the reputation of the expert (even if this reputation alone cannot justify disproportionate fees for a simple task). There is no binding official scale; the judge assesses fees on a case-by-case basis according to legal criteria (diligence, deadlines, quality).
- Le reimbursement of costs and expenses Expenses: These are the actual expenses incurred by the expert in carrying out his assignment. This may include secretarial fees, postage, travel expenses to attend meetings or sites, the cost of analyses carried out by an outside laboratory, or the remuneration of a "sapiteur". The "sapiteur" (article 278 CPC) is another technician, a specialist in a field other than that of the principal expert, whom the latter may consult (sometimes with the authorisation of the judge) if the mission so requires. In this case, the sapiteur's remuneration is included in that of the principal expert.
The expert can only claim remuneration for work that falls within the scope of the mission entrusted to him by the judge. If he deems it necessary to extend his investigations beyond this initial framework, he must normally request an extension of his mission from the judge.
Challenging the expert's remuneration: the tax procedure
What should you do if you think the amount set by the tax order is unjustified? Or if the expert himself considers that the judge has unduly reduced his claim? There is a specific appeal procedure, often referred to as "contesting the fee".
Please note that this appeal does not follow the classic appeal route. It must be brought before a specific judicial authority: the First President of the Court of Appeal in whose jurisdiction the tax decision was made (or a magistrate delegated by him). Article 724 of the Code of Civil Procedure governs this special jurisdiction.
The deadline for lodging this appeal isone month from the date of notification of the tax order. Very important point: this appeal does not suspend execution. This means that even if you dispute the amount, the expert may, on the basis of the original fee order, take proceedings to obtain payment. However, payment in this way does not constitute acceptance of the amount and does not prevent you from pursuing your claim.
The procedure before the First President is fairly formal. The appeal is lodged by means of a "reasoned submission" (a letter explaining the reasons for the challenge) filed with or sent to the clerk's office of the Court of Appeal. One procedural requirement is absolutely essential and will result in the appeal being declared inadmissible: a copy of this reasoned submission must be sent to simultaneously (on the same day) to all other parts involved in the main dispute, as well as to the expert himself (if he is not the author of the appeal). Failure to notify all the parties at the same time will almost automatically result in the appeal being dismissed (article 715 CPC). The First President (or his delegate) will then hear the parties in adversarial proceedings before ruling.
What happens if the condemned party cannot pay the expert?
Unfortunately, this is a situation that can arise: the party ordered to pay the expert's remuneration (or the balance remaining after the advance has been used) is insolvent. Can the expert turn against someone else, in particular the State, since he has acted on a court order?
The answer in principle is no. The legal expert, although an occasional collaborator in the public service of justice, exercises a liberal profession. As such, they assume the commercial risk associated with the insolvency of their debtors. The State does not guarantee payment of their remuneration if the convicted party defaults. It's easy to imagine how worried the expert would be if faced with an insolvent debtor after having carried out work that is sometimes long and complex...
However, there is a notable exception in the very specific context of collective proceedings (safeguard, reorganisation or judicial liquidation of a company). Article L. 663-1 of the French Commercial Code states that if the funds of the company in difficulty do not allow immediate payment of the costs of the proceedings (including the remuneration of the technicians appointed by the court), the Public Treasury will canUnder certain conditions (in particular the agreement of the public prosecutor and a reasoned order from the official receiver), these costs may be advanced.
Apart from this particular case, the expert whose remuneration is not paid by the condemned party will have to use conventional enforcement methods (seizures, etc.) to try to recover his claim, with the risks that this entails when faced with an insolvent debtor.
The costs of legal expertise can represent a significant proportion of the cost of a lawsuit. Understanding how they are set, who has to pay them and how to contest them is therefore essential.
If you find yourself in a situation involving a court-appointed expert or if you dispute the fees charged, do not hesitate to contact our firm to discuss your options.
Sources
- Code of Civil Procedure (CPC): Articles 232 to 284 (Investigative measures, Experts), 695 (4°) (Expenses), 714, 715, 718 (Appeal tax), 724 (Competence of appeal tax expert).
- Law no. 91-647 of 10 July 1991 on legal aid (in particular Art. 40 on the waiver of deposit).
- Commercial Code: Article L. 663-1 (Advance of costs by the Treasury in insolvency proceedings).
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