As previously discussed, the systems in the UK and the USA largely take place independently of the courts, require parties to disclose certain documents or categories of documents, include procedures compelling parties to disclose evidence and penalties for failure to comply with disclosure obligations, and, particularly in the US, heavily involves the gathering of witness testimony.
By way of comparison, in France there is no obligation on any party to disclose particular documents or categories of documents. In fact, the disclosure of evidence is entirely voluntary. French law sets out only limited processes by which parties may attempt to gain access to documents, does not include any penalties for failure to disclose and does not particularly trust or rely on witness evidence. In France, this stage of litigation involves a much more significant degree of court involvement, in line with overarching principle of French judicial sovereignty.
If the burden imposed on parties to civil litigation by the USA’s discovery procedure is on one end of the spectrum, the burden imposed for disclosing evidence in France is on the other.
I. Voluntary nature of disclosure in France
Parties to civil litigation in France have no duty imposed on them to disclose any evidence or particular documents to the opposing party. In fact, the system is entirely voluntary and the parties are free to disclose or withhold whatever documents, evidence or information they wish. In particular, unlike in the UK and the USA, there is no obligation to disclose documents which support the other party’s case.
In terms of timing, any evidence that a party does choose to disclose (such as evidence in support of a claim) is exchanged very early on in proceedings, often being appended to the claim form itself. By contrast, as the evidence gathering procedures in the UK and particularly the USA allow for the parties to build up their cases using the evidence disclosed pre-trial, this process can extend over a longer period of time.
Therefore a key difference between evidence gathering in France and in UK or the USA is that in the former, the parties are not obliged by law to comply with any standard of disclosure.
II. Process for obtaining evidence pre-trial
Of course, if a party fails to disclose specific key evidence in a case, its opponent is likely to feel wronged or at a disadvantage. In such circumstances there are processes at that party’s disposal to attempt to gain access to such evidence.
The party can make a Pre-litigation Disclosure Application, by which it seeks an ex parte order from the judge granting it the right to send a bailiff to seize or obtain copies of specific evidence or documents. However, recourse to this process is limited, in that it is conditional upon the fact that litigation as to the merits of the case has not yet commenced. Additionally, the party seeking the order must prove on submitting its application that the evidence or document being sought would have a direct impact on the case.
Therefore not only is this procedure limited in terms of when it can be pursued, but an order is not guaranteed to be granted by the maître in every case. Equally, if the order is granted but the bailiff is unable to find or recover the evidence sought, then that procedure has been exhausted.
If one party doubts the other’s honesty or “smells a rat”, they can apply for an Incident de communication de piece. This is a self-contained trial within the proceedings with the judge and other party present to focus on the specific issue of a contested piece of evidence or document and try to resolve the issue.
If the party still fails or refuses to disclose the document in question, then the wrong party may use that fact in its submissions to suggest that the court make adverse inferences relating to that refusal to produce or denial of the existence of a certain piece of evidence.
This demonstrates that, while they may be able to request access to certain documents from the court, parties to civil litigation in France are not actually able to compel their opponent to disclose any evidence. This is a stark contrast to the systems in the UK and the USA, where evidence gathering takes place largely independently of the courts and the parties have legal tools at their disposal, such as contempt of court, to compel their opponent to disclose specific information.
III. Role of witnesses
As mentioned in previous editions, the gathering of witness evidence is a key stage of the discovery process in the USA in particular, with witness depositions often amounting to the most expensive and time consuming aspect of pre-trial discovery.
The exact opposite is the case in France. The French courts rarely require or allow witnesses to provide evidence or make admissions in pleadings, particularly in civil proceedings. Rather, French judges often don’t trust witness testimony given “on the stand” and prefer to rely only on brief attestations set out in writing prior to the trial. Witnesses tend only to give evidence in court in criminal proceedings, and even then they are not cross-examined by opposing counsel; in fact, only the judge can ask the witness questions based on his or her evidence.
This is an important difference to gathering evidence in the USA in particular, where witnesses play a key role in uncovering facts in the case and are likely to have an impact on the progression of the case. Again, the fact that judges appear unwilling to hear witness evidence and rather form an opinion on the evidence provided and the submissions made by the parties’ legal advisors, demonstrates a much greater degree of judicial sovereignty in determining facts, controlling submissions, and shaping the progress of the case.
IV. Penalties for non-disclosure and the role of lawyers
As previously discussed, in the UK and the USA there is a positive obligation on the parties to disclose certain documents or categories of documents, including those which are detrimental to their own case or support the other party’s case, within a certain time frame. In addition, the parties’ legal representatives have a duty to ensure that disclosure rules are complied with throughout the trial process. Failure to comply with these obligations can lead to a charge of contempt of court.
However, no such penalty is imposed in France. In fact, should a French lawyer disclose evidence or information that is detrimental to his or her client’s case or supports the opposing party’s case, he or she will be guilty of professional misconduct.
French lawyers also have very wide powers of rhetoric when submitting their conclusions (“closing statements”) to the court; in fact, defamation and slander laws do not apply to lawyers in these circumstances! They can argue their client’s case as they see fit, and are not necessarily required to support their submissions with evidentiary proof. Again, the court plays an active role as it retains the right to determine the relevance, reliability and admissibility of these submissions. In any event, an argument or case would likely only be struck out if there were procedural issues, rather than as a result of any evidentiary shortfalls.
Although this has comprised a very brief and general look at gathering evidence in France, the main conclusion to be drawn is that, unlike in the UK and the USA, there actually is no defined system for gathering, disclosing or inspecting evidence in French civil litigation. The decision to disclose a document or category of documents is entirely voluntary, and is therefore likely only to consist of evidence in favour of that party’s case.
The absence of such formal procedures allows the court much more room to manoeuver in the structuring and reasoning of its judgment, taking into account its determination of facts and the progression of the case as a whole. The lynchpin of French law is judicial sovereignty and this principle is upheld by the French courts’ approach to this preliminary stage of litigation.
Readers are reminded, however, that particularly at this early stage of a case, legal advice should still be sought on a case by case basis so as to determine what steps should be taken and what evidence should be disclosed (if any).