Legal analysis of a specific case that triggered an order under Article 145 of the Code of Civil Procedure

Our investigative firm had to work on a case of (alleged) theft and (alleged) falsification of documents within a company.

In order to gather evidence for our Client, we acted as a "mystery shopper", merely observing and recording payment and collection procedures.

The investigation report resulting from our observations was unequivocal, confirming our client's suspicions.

Despite the overwhelming evidence gathered in our report, our client's lawyers advised him, with a clear lack of understanding of the admissibility of private investigator reports (see consistent case law since 1962), and forgetting rather quickly the differences between civil and criminal procedure in terms of probative value, to request the appointment of a Commissioner of Justice via an ex parte order (see article 145 of the Code of Civil Procedure) so that he could collect the necessary evidence (if indeed we had not already collected it!).

The idea might have seemed appealing at first glance...

Because yes, the finding is valid until proven otherwise... in civil matters. Things are somewhat different in criminal matters, which "compacts" the different modes of proof, evidence being by definition free in criminal cases (we are operating here, we know, a shortcut, because the Commissioner of Justice no longer acts as a Ministerial Officer in the context of a mission of this type, but as an agent).

We will even recall what the national chamber of judicial officers writes:

"In criminal matters (crime, misdemeanor, contravention…), the judge freely assesses the evidence, whatever its nature (this is referred to as “personal conviction”): he may disregard perfect evidence."

The contribution of a bailiff's report versus a report from an approved private investigator (working in absolute compliance with the law, his professional practice, and his code of ethics) therefore appears to us potentially superfluous and debatable in criminal matters (the reports of Commissioners of Justice, in criminal matters, having the value of simple information).

But let's admit it (besides, a civil procedure is entirely conceivable).

Our client's lawyers therefore drafted a request to the presidential petitions office of the competent court, in accordance with the procedure, providing the elements justifying this exceptional derogation from the principle of adversarial proceedings permitted by the ex parte order:

Article 145 of the Code of Civil Procedure: If there is a legitimate reason to preserve or establish, before any trial, evidence of facts on which the outcome of a dispute may depend, legally admissible investigative measures may be ordered at the request of any interested party, by application or in summary proceedings .

The request itself does not provide commentary; it bases its request on our report, in particular, and lists the documents that must be collected by the appointed judicial officer.

The request is accepted, and the TJ therefore issues an order on the basis of art. 845 of the CPC, in order to mandate a bailiff, who will be charged, on several occasions, with behaving like a mystery shopper: he is therefore authorized by the TJ not to decline his status.

Article 875 of the Code of Civil Procedure: The president may, upon request, order any urgent measures within the limits of the court's jurisdiction when circumstances require that they not be taken in adversarial proceedings.

So far, so good... or almost.

The measures of investigation in futurum , and the derogation from the principle of adversarial proceedings arising from the order on application, which is exceptional and must be justified, do NOT allow for derogation from certain legal obligations during the execution of the order and the intervention of the CDJ(s).

We will reproduce here a long extract from the Revue du Droit:

In a judgment dated February 10, 2011, the Second Civil Chamber of the Court of Cassation overturned a judge's order authorizing a bailiff to, in effect, entrap the person on whose premises he was carrying out the authorized procedures under Article 145. In this case, the initial judge, acting on a petition, had ordered the bailiff to make several observations without requiring him to disclose his identity and/or the legal basis for his authority. The judge thus authorized the bailiff "to only mention the order appointing him and defining his mission once it had been completed." In this case, the Court of Cassation quashed and annulled the Court of Appeal's judgment, which had upheld the dismissal of the application for retraction, since, according to the Court, it is necessary that "a copy of the petition and the order be served on the person against whom it is issued prior to the execution of the investigative measures it orders." When an investigative measure has been obtained by application, the principle of adversarial proceedings only applies at the stage of any potential application for retraction, and not during the execution of the measure; otherwise, the element of surprise that most often underpins unilateral action would be lost. However, as Professor Perrot rightly points out, this does not mean acting unfairly or setting up a scheme to trap the opposing party: "what matters is the fair gathering of evidence, pending a possible adversarial debate on the consequences that should be drawn from it." The bailiff is therefore required to present themselves as soon as they enter the premises, notifying those present of the application and the order establishing their mission. It should also be added that this notification must be carried out in accordance with the provisions applicable to the service of bailiff's documents, as set out in Articles 653 et seq. of the Code of Civil Procedure. In practice, the applicant submits, most Often, the judge is presented with a pre-drafted order outlining the measures he wishes to have carried out. The analyzed decision of the Court of Cassation should lead practitioners to act as skillful but loyal scribes for the judge, avoiding any subterfuge that might lead the bailiff to entrap the person being served .

In conclusion, even if the idea of calling upon a Commissioner of Justice via a presidential order and derogating from the principle of adversarial proceedings might seem attractive, the lack of awareness of article 495 of the code of civil procedure leaves little doubt* about the incompatibility of this procedure with the objective of securing evidence without a declaration of capacity or delivery of a copy of the request and the order, and this from the beginning of the intervention.

Article 495 of the Code of Civil Procedure states that: A copy of the application and the order is left with the person against whom it is issued.

We therefore strongly recommend that our clients seek our advice before implementing any procedure of this type, the technical aspects of which are often beyond the grasp not only of the bailiffs responsible for enforcing the order entrusted to them, but also of certain courts that are not very familiar with these investigative measures. in futurum .

* Addendum:

We have been informed by one of our readers, whom we thank very much here, of a 2014 ruling by the 2nd Civil Chamber of the Court of Cassation (ruling not published in the bulletin), which contradicts the ruling issued in 2011:

Court of Cassation, Civil Division, Second Civil Chamber, September 4, 2014, 13-22.971, Unpublished

Having regard to Articles 17, 495, paragraph 3, and 503 of the Code of Civil Procedure; Whereas, in order to set aside the ex parte order of 2 July 2009, the judgment holds that a copy of the application and the order must be served on the person against whom it is issued before the execution of the investigative measure and that the order can only be executed against that person after it has been served on them, that The president of the regional court could not therefore order the bailiff not to disclose his identity and not to immediately serve the order authorizing him to carry out the investigation, but only once the purchase of the computer containing the illegal copy(ies) of the software in question and the delivery of the equipment had been completed. ;By ruling in this way, when the sole purpose of Article 495, paragraph 3, of the Code of Civil Procedure is to allow the restoration of the principle of adversarial proceedings by informing the person subject to the measure ordered without their knowledge of what determined the judge's decision, and to assess the appropriateness of a possible appeal, so that the judge of applications could delay the notification of the decision, and that it noted that at the end of the operations, the copy of the order and the application had been left and the original presented to the company ---, the Court of Appeal violated the aforementioned texts;

This 2014 decision therefore overturns the 2011 decision, which stated precisely the opposite!

The specific case that interests us may, in a few years, be brought before the highest court of the French judicial system: it will then be interesting to study the decision that the judges could make on this subject... confirming or not the possibility for the Commissioner of Justice to present himself before or after the execution of his mission, and even the possibility of behaving as a "mystery shopper".

Eric AXELSON, 27/11/2025.