Pot-pourri V: article 875bis of the Judicial Code again amended

Pot-pourri V: article 875bis of the Judicial Code again amended

Introduction – admissibility of the action and the investigative measures (medley I) 

In 2015, through the law of October 19, 2015 amending the law of civil procedure and laying down various provisions in matters of justice, known as the “pot-pourri I” law, the legislator amended article 875 bis of the Judicial Code in order to require the judge to rule on the admissibility of the action brought before him before pronouncing an investigative measure. 

The new article 875 bis of the Judicial Code with “pot-pourri I” sauce provided as follows: 

The goal pursued by the Minister of Justice was to prevent an investigative measure (in particular: an expert report) from being pronounced and carried out, with all the cost and delay that such a measure entails, so that one finds at the end of the day that the action or request is inadmissible: 

  • “However, it will be difficult to accept that, for example, in a case of building construction, a tedious and therefore time-consuming and very expensive expertise is carried out while the admissibility of the request is (still) under discussion. ratione temporis, for example because the deadline for the ten-year liability of the contractor or the architect would be exceeded ” (Explanatory memorandum to the pot-pourri law I, Parl. Doc., Chamber, 2014-2015, no. 54-1219 / 001, p. 24); 
  • “(…) provided of course that the action is admissible, because in cases that are not admissible, it is not necessary, for example, to carry out long and expensive expertises  (Report of the first reading of the law pot-pourri I, Doc. parl., Chambre, 2014-2015, n ° 54-1219 / 005, p. 8). 

In short: let us avoid that an investigative measure (and, in particular, an expertise) is pronounced and carried out while in any case the action is inadmissible; and thus let us save, upstream, the cost and time of an investigative measure (and, in particular, of an expertise) by requiring the judge to first check the admissibility of the action before pronouncing such a measure. . 

Appreciation of this “pot-pourri I” reform and uncertainties 

In principle , I had personally considered that this modification of article 875 bis of the Judicial Code by the pot-pourri I law was, in itself, commendable. 

See: 

– F. Lejeune, “Simplification of the default procedure and metamorphosis of the appeal, for what efficiency? », In J. Englebert and X. Taton (eds.), The effective civil trial, First analysis of the law of October 19, 2015 modifying the law of civil procedure (known as“ pot-pourri law 1 ”) , LimalAnthemis , 2015, p. 132, No. 47; 

– F. Lejeune, “The impact of the“ potpourri I ”law on expertise”,  Belgian review of bodily injury and legal medicine , 2016, p. 41, n ° 18. 

That said , this reform wanted by the Minister of Justice did not fail to raise questions in terms of its effectiveness: 

  1.     First, because the Minister had not prohibited the parties from raising the inadmissibility of the action for the first time on appeal on how to file for my trademark. It was therefore always, indeed, possible to raise a plea of ​​inadmissibility  post expertise, and therefore it could still happen that an action is declared inadmissible after a long and costly investigative measure has been carried out.

“This being the case, if it is certainly laudable to want to prevent an expert report (in view of its drawbacks in terms of time, energy and costs) from being carried out when the action is, in reality, inadmissible , one is entitled to wonder if the Minister of Justice really went to the end of his logic. 

In my opinion, this is not the case: the new article 875bis, paragraph 1, of the Judicial Code, does not prevent a plea of ​​inadmissibility from being raised for the first time on appeal. However, is it not paradoxical to prevent the parties from raising a plea of ​​inadmissibility once the trial judge has delivered an expert report, but not to prevent them from raising this same plea of ​​inadmissibility before the appeal judge? To ask the question is to answer it: if the objective is to avoid carrying out expert opinions which could ultimately prove to be useless because of the inadmissibility of the action on the merits noted post factum, the Minister of Justice should perhaps not only have obliged the defendants to raise their plea (s) of inadmissibility before the delivery of the expert opinion, but furthermore prevent these same parties from raising these – for the first time – to the degree of appeal. This solution would have had the merit of giving a real useful effect to the measure targeted by the Minister. 

But this is not the case, and it is clear that the new article 875bis, paragraph 1, of the Judicial Code, will not prevent the action from being declared inadmissible after the pronouncement and execution of a long expertise. and expensive; simply, this post-expert inadmissibility will be delayed and, if need be, can only be pronounced on appeal ” (F. Lejeune, “ The impact of the “pot-pourri I” law on expertise ” , Revue belge du bodily injury and forensic medicine, 2016,  p. 41, n ° 18). 

  1.     Secondly, because even at first instance, it was not certain that the reform prohibited the parties from raising a plea of ​​inadmissibility after an expertise had been pronounced and carried out.

There were, in fact, (at least) two ways of understanding the rule according to which “ the judge may order an investigative measure only after the action concerned has been declared admissible” : 

a) Either this rule meant that the parties now had the duty and the obligation to raise the inadmissibility of the action before an investigative measure (e.g. an expertise) was pronounced and, correlatively, that if the judge pronounced an investigative measure, the action should automatically be considered admissible (whether or not admissibility had been discussed since in any case the parties would no longer be authorized to raise a plea of ​​inadmissibility  post investigative measure). 

In this sense, see. X. Taton and G. Eloy (“Structure and content of conclusions, res judicata and investigative measures: new responsibilities of the parties”, in J. Englebert and X. Taton (eds.), The effective civil trial, Première analysis de the law of October 19, 2015 modifying the law of civil procedure (known as the “pot-pourri law 1”) , LimalAnthemis, 2015, pp. 104-105, n ° 26): 

“Article 875bis, paragraph 1, of the Judicial Code, will moreover probably put an end to the hesitations on the mixed character or not of the judgments ordering an investigative measure in cases where no objection has been raised. . The judge will be deemed to have declared the action admissible; and the defendant may, if necessary, raise a cause of inadmissibility of the action in its appeal request ” . 

See. also F. Lejeune, “The impact of the“ pot-pourri I ”law on expertise” , Belgian review of bodily injury and legal medicine, 2016,  p. 40, n ° 17: 

“The parties, for their part, must learn the lessons of this new article 875bis, paragraph 1, of the Judicial Code and anticipate: if they wish to raise a plea of ​​inadmissibility, they must do so before an expert opinion is pronounced. After that, it will be too late (with regard to the first instance, in any case). 

In fact, and unless the new Article 875bis, paragraph 1, is meaningless, if the judge “cannot order an investigative measure until after the action has been declared admissible”, this implies ipso facto that, if the judge pronounces an expert report is that he considers the action admissible (whether expressly or implicitly, see in this regard infra, n ° 28). 

As soon as an expertise is pronounced, there is therefore no longer any question of raising a cause of inadmissibility (at the same level of jurisdiction) ” . 

b) Either this rule had a much narrower scope and meant only that if admissibility was contested, the judge had, before pronouncing an investigative measure (e.g. an expert report), necessarily decide and empty the question of admissibility . 

But then, in this second interpretation, the rule lacked clarity since this condition (ie “if the admissibility is contested”) was not found literally in the text of the rule:  “Except when the measure relates to compliance with a condition of admissibility, the judge can order an investigative measure only after the action concerned has been declared admissible ” . 

  1.     Finally – and this was the third major cause of the ineffectiveness of this rule provided for by the “pot-pourriI” law in article 875 bis   -, if the judge was obliged to declare the action admissible before pronouncing a judgment.investigative measure and / or was presumed to have declared the action admissible when he pronounced an investigative measure, the investigative judgments would in the future automatically be mixed judgments (final on admissibility and forerunner right on the measure of instruction). 

However, if investigative judgments were to be automatically considered as mixed judgments, they would – just as automatically – be susceptible of immediate appeal, which would deprive the rule, also introduced by law, of meaning or effectiveness. pot-pourri I ”, delaying the appeal of judgments before saying right (ie: provisionally settling the situation of the parties and / or pronouncing an investigative measure) – rule provided for in article 1050, paragraph 2 , of the Judicial Code, as amended by the “potpourri I” law. 

I have already mentioned this issue of the link between the “medley I” versions of articles 875 bis and 1050 of the Judicial Code in the following post: 

I also wrote (in “The impact of the“ potpourri I ”law on expertise” , Belgian review of bodily injury and legal medicine, 2016,  p. 46, n ° 27) that: 

“In reality, the new article 875bis, paragraph 1, has the collateral effect of torpedoing the effectiveness of the delay in appealing judgments pronouncing an investigative measure (including, therefore, judgments ordering an expertise). 

To understand the unfortunate interaction between these two provisions, we must return to the text of the new article 875bis, paragraph 1. As a reminder, this provides that the judge can order an investigative measure (including an expertise) “only after the action concerned has been declared admissible”. 

If, at first glance, it can be considered as a positive step forward, this new rule inserted in Article 875bis, paragraph 1, inexorably has the collateral effect of: 

(i) confer on the judgments ordering an investigative measure (including an expertise) a “mixed” character, since such judgments will systematically contain, in addition to the decision before saying right on the investigative measure, a final decision on admissibility; 

(ii) make such judgments immediately subject to appeal because of their mixed nature. 

The Minister of Justice was aware of this pitfall, since the Council of State had warned him and invited him to review his copy with regard to article 1050, paragraph 2. 

Despite this warning, the Minister did not make any changes to article 1050, paragraph 2, then in draft, simply considering that it was not possible to do otherwise ”. 

  1. Inshort and to summarize the above: 
  • either this new rule had virtually no impact or practical added value (restrictive interpretation of this rule: the judge should only rule on admissibility if it was expressly contested; and if this was not the case, nothing prevented parties to challenge admissibility later, post investigative measure); 
  • either this new rule had a really interesting practical impact (the parties were now obliged to raise their plea of ​​inadmissibility before an investigative measure was pronounced; afterwards, it would be too late and they could no longer do so) but incomplete ( because nothing prevented the parties from invoking for the first time a plea of ​​inadmissibility on appeal, post  investigative measure),  and at the same time torpedoed the effectiveness of the delay in appealing judgments of investigation  (since all investigative judgments risked being considered final as to admissibility). 

 

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