The Council of State recalls the rules applicable to judicial expertise.
CE January 12th, 2011 Company OTV France, Req.n ° 337889
Rule n ° 1: It is not possible to ask an expert to pronounce on questions of a legal nature !!
In a judgment of 12 January 2011 Société OTV France, no. 337889, the Conseil d'Etat recalls the rule according to which it is not possible to ask a Judicial Expert to pronounce on questions of a legal nature.
At issue here was an order confiding to the Judicial Expert the following mission: " research and specify the contractual links between the parties, describe the tasks assigned by the owner to each of the builders (...) and if possible include in its report contracts, riders, service orders and any other useful documents ; specify in particular whether the contract with the company OTV France included for it the obligation to set up such or such type of foundations ".
The Council of State will sanction this order on the grounds that measures of inquiry can not relate to questions of law:
" Considering, in the first place, that the judge of the interim Administrative Court of Appeal of Lyon, ordering the expert, in 2 ° of Article 2 of the order contested, to seek and specify the contractual links uniting parties, to specify in particular whether the contract with the company OTV France included for it the obligation to set up such or such type of foundations and describe the tasks entrusted by the owner to each of the constructors it appeals to the present proceedings, has included in the missions of the expert the appreciation of the extent of the obligations that the contractual documents place on the parties; that by entrusting the expert with a mission on a question of law, the judge hearing the application for interim relief made an error of law in this respect "
This judgment makes it possible to recall that it can not legally be prescribed to a judicial expert to decide on the legal characterization of the facts or on the legal consequences to be drawn from factual findings (CE 11 March 1996, SCI du domaine des Figuières, p. 71). In the same vein, the Conseil d'Etat considers that an expert can not be given the task of interpreting the stipulations of a contract (EC 18 February 1955, Auxiliary Water Supply Company, page 98). In the same way, an expert can not be responsible for assessing the extent of the obligations that a contract places on the parties (CE 8 February 1980, Commune de Venelles and Société d'aménagement urbain et rural, T. 838).
Rule n ° 2: The administrative judge can not refuse to rule on a request for an expert's report submitted by a subcontractor in the context of a public works dispute or extend it to the insurer of the manufacturer.
The administrative judge can no longer refuse to extend the expertise to the subcontractor solely on the ground that he is related to the builder by a private law contract and that within a public works operation, the dispute between the manufacturer and the subcontractor falls under private law. The Council of State also admits, in the same logic, that the expertise can also be extended to the insurer of the manufacturer (CE 21 January 2008, Insurance Company Areas Damage).