French Litigation and Civil Disputes

It is not unusual for UK-based individuals or companies to encounter disputes revolving around French law, and in particular, French real estate. Many of these disputes could have been avoided if proper advice had been taken at the outset (although a number also arise from unscrupulous practice and unfortunate circumstance.)

Should a problem arise, the French justice system can sometimes appear incomprehensible, long-winded, and daunting to those who are used to the Anglo-Saxon Common Law model.

Types of French Courts

Most civil litigation in France is dealt with by a network of High Courts called Tribunaux de Grande Instance, sitting in each of France’s 95 French territorial districts, known as départements. Some districts have more than one High Court due to the size of their population.

Alongside these high courts are found satellite courts of limited jurisdiction, such as the Tribunaux d’Instance, which hear small claims or landlord and tenant cases, or the Tribunaux de Commerce, which is reserved for litigation arising from business disputes between business people. Decisions delivered in these courts of first instance are open to appeal before regional Courts of Appeal (_Cours d’Appel_), of which there are 40 throughout France. A reference on a point of law may be made from the decision of a regional Court of Appeal to the Supreme Court (_Cour de Cassation_).

Points involving matters of European law may lead to a reference to the European Court in Luxembourg. In the event of a dispute with a local authority or governmental agencies, of which there are many, litigation will generally take place before an administrative court and not a civil court. This is because French law historically draws a fairly clear distinction between the spheres of private law and public law. Public law, known as droit administratif, has its own principles and procedures which make it a largely self-contained system, differing from civil law and civil procedure in many particulars.

This law is administered in a system of parallel courts to the civil ones, namely the Tribunaux Administratifs in the first instance and the Cours Administratives d’Appel at appellate level. One of the peculiarities of the system is that certain types of cases are heard directly by the Conseil d’Etat, which is the Administrative Supreme Court, sitting at the apex of this court system, and to which a reference may generally be made from the decisions of the courts below, on a point of law.

Access to the French court system is as a rule through an avocat (lawyer), although it is possible before the courts of limited jurisdiction for an individual to appear in person. The profession is partly governed by statute and partly self-regulated through local Bars, attached to each regional Court of Appeal or sometimes to a High Court. Until 1971, the legal profession in France had two branches, corresponding broadly to the solicitor-barrister division still operating in England today. The French barristers were known as avocats, the French solicitors as avoués. This distinction was phased out in 1971, but not completely, with the result that the old division partly survives in both covert and overt form to this day throughout the French civil court system.

Types of French Lawyer

The new system which arose in 1971 subsumed the avoués (solicitors) into a single profession, namely, that of avocat, with each avocat having a right of audience before all the courts of the land. However, the former avoues, who had just been absorbed within this new avocat profession, retained as a sop the exclusive right to institute proceedings before the local High Courts. This concession, which was meant as a sunset clause operating in favour of former avoués endures today for the benefit of all avocats practising before a local High Court, with the result that an avocat practising outside this local High Court, when instructed by a client having a dispute within the boundary of the local High Court, cannot institute proceedings himself, but must retain for doing so the services of a local avocat. In practical terms, this means that a Paris-based claimant, who retains a Parisian avocat, to run his case before the High Court (_Tribunal de Grande Instance_) of Marseille, will have to appoint a member of the local Bar to act as his agent, to introduce the case before that court. Before the regional Courts of Appeal, this rule is reinforced by the fact that the avoués profession before those courts was preserved by the 1971 reform. Hence, all cases litigated before a regional Court of Appeal begin through the agency of an avoué.

Lastly, there exists a class of senior counsels in France who hold an exclusive right of audience before the Civil Supreme Court (_Cour de Cassation_) and the Administrative Supreme Court (_Conseil d’Etat_). Known as avocats auprès de la Cour de Cassation et du Conseil d’Etat, they alone have conduct of any proceedings before these jurisdictions, besides the monopoly right of audience just mentioned. Proceedings in a French civil court differ from proceedings conducted in an English court in that in the main a French trial is a trial on documents. Although the French civil procedure code contains provisions for the oral testing of evidence at court, examination in chief and cross-examination of witnesses at trial are definitely not a common feature of the French civil litigation process. Nor are the rules of disclosure of civil evidence by the litigants in any way as developed or demanding as in England.

This lack of recourse to the testimony of witnesses in court and the reluctance of French courts to allow comprehensive discovery in litigation of documents held by the parties goes a long way to explaining the insistence of the French to reducing at a very early stage important bargains into writing, as well as their predilection for documents bearing date stamps and official seals. These are sensible precautions in view of the practice of the courts. Furthermore, French courts give little weight to the written testimony of parties to litigation or that of their relatives or employees. This has ensured the growth of a class of professional witnesses, unknown in England, called the huissiers. The huissiers form a hybrid profession, as besides being professional witnesses, they also discharge, wearing a different cap, the duties performed by process servers and bailiffs in England. Their duty as “professional witnesses” is an important one. Hence, in France if a neighbour encroaches on adjoining land, the aggrieved party will not make a witness statement to that effect, but retain the services of a huissier, who will depose in an affidavit to the encroachment. Because of his official status, and the professional duty incumbent upon him to be objective, the court will give prima facie weight to such evidence.

Going to law in France is generally less expensive than in England, partly because of the pared down nature of preparing for trial. Furthermore, the hearing at trial, shorn as it is of time-consuming oral testing of evidence, consists of speeches delivered by the avocats on behalf of their clients and the answering of questions put to them by the court. Hearings seldom exceed a few hours. Unlike in England, the costs do not truly “follow the cause”, and although the winner does recover some of his costs, the proportion is, at least in the courts below, fairly minimal. This is seen as acceptable because the cost of going to law is less expensive by English standards, although this cost should not be underestimated, especially for non-French residents. Resort to litigation by the French is more extensive than in England and appealing an unsatisfactory decision far more common, particularly as the appellate jurisdiction will re-hear the case entirely on its merits.

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