(article 145 of the French Code of Civil Procedure)

  • Article 145 of the French Code of Civil Procedure provides that:
  • “If there is a legitimate reason to preserve or establish before any trial the proof of facts on which the solution of a dispute may depend, legally admissible investigative measures may be ordered at the request of any interested party, on petition or in summary proceedings.”

Under the terms of a ruling handed down on February 28, 2019, the Paris Court of Appeal held that:

“The applicant for an investigative measure in futurum, while he does not have to prove the reality of the facts he alleges, must justify elements making his suppositions credible, not falling within the scope of mere hypothesis, in connection with a potential future dispute whose subject matter and legal basis are sufficiently determined and whose solution may depend on the investigative measure, as the requested measure must be relevant and useful (CA Paris, Pole 1, Ch. 2, February 28, 2019, n° 1819150).

The judge of article 145 of the Code of civil procedure, does not have to prejudge the dispute on the merits (Cass. Civ. 2nd, Jan. 24, 2008, n° 07-13514), but only to verify that a later dispute is likely to arise. The subsequent dispute must not be purely artificial.

It is therefore not necessary for the plaintiff to commit himself now to sue on the merits and to indicate what legal basis he will adopt:

“Whereas in so ruling, whereas the aforementioned article does not require plaintiffs to indicate as of now whether they will bring suit and to state precisely the nature and legal basis thereof, the court of appeal violated the aforementioned text.” (Cass. Com, January 28, 1992, n°90-16.748).