In a very important Judgment dated December 22, 2023 (No. 20-20.648), the French Supreme Court (within its most formal composition) reversed its previous position by admitting that, in civil proceedings, the unlawful or unfair nature of evidence obtained does not necessarily mean that it should be excluded from the proceedings.
The Supreme Court has thus established the following principle:
“In civil proceedings, unlawfulness or unfairness in obtaining or producing evidence does not necessarily lead to its exclusion from the proceedings. When invited to do so, the Court must assess whether such evidence undermines the fairness of the proceedings as a whole, by balancing the right to evidence against the conflicting rights at stake. The right to evidence may justify the production of evidence that infringes other rights, provided that such production is essential to the exercise of that right and that the infringement is strictly proportionate to the aim pursued.”
The facts of the case concern the production of recordings of a person without his/her consent
Two controls must be carried out by the Judge for the evidence to be admissible:
- Firstly, a necessity control: the use of the disputed evidence shall be indispensable to the success of the claimant’s demand and must not deprive the claimant of any means of proving his/her rights;
- Secondly, a proportionality control: the right to evidence must not be disproportionate to the aim pursued and the conflicting rights of the parties. The Judge must then balance the rights and interests of the parties involved.
By way of conclusion
Under the terms of this change in jurisprudence, which offers litigants, under certain conditions, the possibility to use new means of evidence, the Supreme Court abandons the principle of inadmissibility of evidence obtained unfairly and follows the principles set out in the case law of the European Court of Human Rights.
To be expected: an increase in litigation concerning the legality of “clandestine evidence”.
A very recent ruling by the social chamber of the Supreme Court dated January 17, 2024 (No. 22-17.474) applies this jurisprudence, which will undoubtedly lead to an increase in litigation concerning the legality of “clandestine evidence”.
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Nicolas Contis – Partner
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Julie Gayrard – Partner
Litigation – Arbitration – Mediation • Contract drafting and negotiation
jgayrard@kalliope-law.com
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