Assessment of the utility of a request for extension of an expert measure
This judgment is interesting because it allows to recall the modalities of appreciation of the utility of a request for extension of an expert measure by the administrative judge.
In this case, a municipality, as a client faced with disorders affecting the house of association life he had built, filed a referral to the administrative court ten days before the expiry of the deadline. of the ten-year guarantee, October 7, 2016, when the acceptance took effect on October 17, 2006.
His request tended to involve several of his contracting parties, as builders, and their respective insurers, as well as a subcontractor. One of the builders and its insurer requested that the measure be extended to another subcontractor.
It was only on appeal that the Municipality's request could prosper, and an expert was appointed. Nevertheless, the claim for the third subcontractor's claim was dismissed.
Teaching n ° 1: Modalities of appreciation of the utility of a request for extension of a measurement of expertise
If it is accepted that the request for an expert opinion is useful in the perspective of a main dispute, the validity of ancillary claims can only be assessed in terms of their usefulness in carrying out expert appraisals.
The methods for assessing the usefulness of an expert measure had been specified in a decision of the Conseil d'Etat of 14 February 2017, No. 401514 (published in the Tables).
In this 2017 decision, the Conseil d'Etat stated that the usefulness of an expert measure is assessed "in the perspective of a main, current or potential litigation to which it is likely to be attached". In this context, added the High Court, it is necessary to reject the request for expertise when the pretensions the fondant face the prescription.
Applying the above-mentioned case-law, the Court considered that the main request of the municipality was useful because it was introduced within the ten-year guarantee period, but that the counterclaim formulated by one of the builders against a subcontractor , intervened beyond this period, was met with the prescription (being recalled that since the entry into force of the order of June 8, 2005, the actions in responsibility directed against the subcontractors due to damages affecting the book are prescribed by 10 years from the date of receipt of the works).
The Council of State cancels the judgment for error of law: since it was admitted that the main request was not prescribed, the only question to ask himself to possibly be entitled to the request for blaming the second subcontractor was that of the utility of this challenge "to the completion of the operations of expertise".
Teaching n ° 2: this decision is an opportunity to remind that the interest to introduce a referee-expertise also resides (provided that the request prospers) in the interruptive effect of this action on the limitation periods and foreclosure , resulting from the provisions of Article 2241 of the Civil Code.
Board of state
N ° 415139
Mentioned in the tables of Lebon collection
July 26, 2018
Considering the following procedure:
The municipality of Villeneuve-sur-Lot asked the judge of the administrative court of Bordeaux to appoint an expert whose mission is to know disorders in the construction of the large meeting room of the House of community life carried out in 2006. By an order No. 1604360 of January 12, 2017, the judge of the Bordeaux administrative court dismissed his application.
By an order n ° 17BX00344 of October 5th, 2017, the president of the 6th chamber of the administrative court of appeal of Bordeaux, on the appeal of the commune of Villeneuve sur Lot, canceled this order, ordered that it is carried out a contradictory expertise between the municipality of Villeneuve-sur-Lot, Simon Bonis company and its insurance company AXA France Iard, the new operating company Cuendet and its insurance company Allianz Iard, Me A ... B .. ., as liquidator of Decopeint, and its insurance company MMA, to the rights of the company Azur Insurance, and rejected the conclusions of the company Simon Bonis and the company AXA France Iard tending that the Eurovia is involved in the expertise.
By a summary appeal and a supplementary memorandum, registered on 20 and 30 October 2017 to the litigation secretariat of the Conseil d'Etat, the companies Axa France Iard and Simon Bonis ask the State Council to annul this order insofar as it did not implicate Eurovia, a subcontractor.
- Considering that according to the article L. 511-1 of the code of administrative justice: "The judge of the interim reliefs rules by measures which are of a provisional nature.is not seized of the main one and is pronounced as soon as possible " that under the first paragraph of Article R. 532-1 of the same code: "The judge of interim relief may, on simple request and even in the absence of prior administrative decision, prescribe any useful measure expertise or d instruction;
- Considering that it appears from the documents of the file submitted to the judges of the interim reliefs that the municipality of Villeneuve-sur-Lot entrusted by a public contract on 29 September 2005 the construction of a house of the associative life to various companies; Lot No 2 relating to structural work was awarded to Simon Bonis and Lot No 13 relating to resilient floor covering to Decopeint; that the company Eurovia Aquitaine realized as a subcontractor of the company Simon Bonis lime treatment services on the lot n ° 2; that the works relating to the lot n ° 2 were received without reserves on October 17, 2006; that the municipality of Villeneuve-sur-Lot, having noted in 2015 an abnormal deterioration of the floor covering of the large meeting room of the house of the associative life, has seized the judge of the summary of the administrative court of Bordeaux on October 7, 2016 before the expiry of the ten-year guarantee period, a request for the appointment of an expert, on the basis of the provisions of Article R. 532-1 of the Code of Administrative Justice, whose mission is to know disorders occurred; that it asked that this expertise be carried out contradictorily with the company Simon Bonis, the company Decopeint, the company Cuendet, subcontractor of the company Simon Bonis, and their respective insurers; that by a memoir dated December 2, 2016, the company Simon Bonis and his insurer, the insurance company AXA France, asked that the expertise be extended to the company Eurovia, another subcontractor of the company Simon Bonis; that, by an order dated January 12, 2017, the judge of the administrative court of Bordeaux rejected the request for expertise for lack of utility; that by an order dated October 5, 2017, the judge of summary of the Administrative Court of Appeal of Bordeaux canceled this order, ordered that it is proceeded to a contradictory expertise between the commune of Villeneuve-sur-Lot, the company Simon Bonis and his insurance company AXA France Iard, the new operating company Cuendet and his insurance company Allianz Iard, Me A ... B ..., in his capacity as liquidator of the company Decopeint, and its insurance company MMA, coming to the rights of the company Azur assurances, and rejected the additional conclusions tending that the company Eurovia is implicated;
- Considering that the usefulness of a measure of instruction or expertise that is requested of the Judge to order ordered on the basis of Article R. 532-1 code administrative justice must be appreciated, d on the one hand, in the light of the elements which the plaintiff disposes of or may dispose of by other means and, on the other hand, although that court is not seised of the principal, in the light of the interest which the measure has in the prospect of a main, actual or potential litigation to which it is likely to be attached; that to the latter title, he can not grant a request for expertise when, in particular, it is formulated in support of claims that are clearly not within the jurisdiction of the administrative court, which are inadmissible or which come up against the prescription; that, similarly, it can not grant a request for an expert assessment to evaluate a damage, in order to engage the responsibility of a public person, in the manifest absence of causal link between the damage to be evaluated and the alleged fault of that person;
- Considering that it emerges from the statements in the order under appeal that, in rejecting the conclusions of the Simon Bonis and Axa France Iard companies, that Eurovia, a subcontractor of Simon Bonis, should be awarded the appraisal, the judge of the Bordeaux Administrative Court of Appeal found that any action for damages against Eurovia would be statute-barred, the work carried out by the company Eurovia for which its challenge was requested had made the subject of a reception on October 17, 2006, the starting point of the period of the ten-year guarantee to be fixed at this date and this deadline was not interrupted by the request for expertise of the municipality of Villeneuve-sur-Lot , registered in the registry of the Administrative Court on 7 October 2016, which did not cover this company;
- Considering, however, that on the basis of this ground to reject the conclusions of the company Simon Bonis and his insurer that Eurovia should be subject to the expert appraisal, whereas it was his sole task to determine whether the the involvement of Eurovia was useful for the realization of the expertise requested by the municipality of Villeneuve-sur-Lot, which he had admitted that the claims were not prescribed, the judge of summary of the administrative court of Appeal of Bordeaux has made an error of law; that, therefore, without it being necessary to examine other means of the appeal, its order must be annulled as it rejected the request of mis en cause of the company Eurovia to expertise;
- Whereas, in the circumstances of the case, it is appropriate to settle the case to that extent under the interlocutory proceedings instituted by the municipality of Villeneuve-sur-Lot pursuant to the provisions of the Article L. 821-2 of the Code of Administrative Justice;
- Considering that it follows from the investigation that the mis en cause of the company Eurovia is useful to the achievement of the expertise requested by the municipality of Villeneuve-sur-Lot to describe and analyze the disorders affecting the large meeting room of the house of associative life, to determine the provisional measures to be taken, to determine the origin, extent and cause of the disorders and to quantify the losses suffered by the commune; whereas, therefore, it is appropriate to grant the request of the companies Simon Bonis and Axa France Iard and to call on Eurovia to provide the orderly expertise;
Article 1: The order of 5 October 2017 of the judge of summary of the Administrative Court of Appeal of Bordeaux is canceled in so far as it refused to implicate the company Eurovia Aquitaine.
Article 2: The expertise ordered by the ordinance of 5 October 2017 of the judge of summary of the Administrative Court of Appeal of Bordeaux is extended to the company Eurovia Aquitaine.
Article 3: This decision will be notified to the company Axa France Iard, the company Simon Bonis, the municipality of Villeneuve-sur-Lot, the new operating company Cuendet, the insurance company Allianz Iard, to Maître A ... B ..., as liquidator of the company Decopeint, the insurance company MMA, coming to the rights of the company Azur Insurance and the company Eurovia Aquitaine.