Assignation en extension des opérations d'expertise

14:43 Mar 14, 2019
French to English translations [PRO]
Law/Patents - Law: Contract(s) / Subpoena
French term or phrase: Assignation en extension des opérations d'expertise
Heading of a subpoena
Andre Lotter


Summary of answers provided
4Application for extension of expert investigation
Eliza Hall
4 -1Summons regarding widening of the scope of an expert's report
Wordwatcher
Summary of reference entries provided
Potential sources of help
Nikki Scott-Despaigne
Assignation - cite the other party to enter an appearance
Adrian MM.

Discussion entries: 6





  

Answers


1 day 1 hr   confidence: Answerer confidence 4/5Answerer confidence 4/5
Assignation en extension des opérations d\\\'expertise
Application for extension of expert investigation


Explanation:
My answer is based on the German translation of the same term (https://www.proz.com/kudoz/french-to-german/law-general/2593... and one such French document found online (https://docplayer.fr/11722962-Assignation-en-refere-en-exten...

A couple of notes:

- "Summons" is a possible translation of assignation, but not in this case because the legal meaning of "summons" is not what's happening here. Summons are for letting parties know they've been sued.

- "Subpoena" can also translate that word, but not here; it's not a subpoena (a request to someone to come testify or to provide documents).

- So request or application or something to that effect is what this means.

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Note added at 1 day 5 hrs (2019-03-15 19:54:30 GMT)
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Another option for "application" would be "petition." It means the same thing but in the legal context (petitioning the court = asking the court to do XYZ = filing an application for the court to do XYZ).

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Note added at 2 days 2 hrs (2019-03-16 17:02:30 GMT)
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Notes on how expert witnesses operate in France:

"L’article 238 du code de procédure civile contient notamment les dispositions suivantes :
«Le technicien doit donner son avis sur les points pour l’examen desquels il a été commis. Il ne peut répondre à d’autres questions, sauf accord écrit des parties.»" https://www.village-justice.com/articles/expertise-judiciair...

So this assignation here appears to be the first step in obtaining the accord écrit des parties (or failing that, a court order) to expand the scope of the investigation, and thus of the questions the expert is allowed to address, whether in a written report or in testimony.

Eliza Hall
United States
Local time: 04:30
Specializes in field
Native speaker of: English
PRO pts in category: 60

Peer comments on this answer (and responses from the answerer)
agree  AllegroTrans: application (but petition would not work for E&W); I would prfere "report" to "investigation" though
10 hrs
  -> Why would you prefer report, when the term means expert investigation? It's the scope of the investigation that determines the scope of the report, if there even is a report (art. 282 du Code de procédure civile allows purely oral expert testimony).

disagree  Wordwatcher: The "application"is the step prior to issue of an "assignation".
17 hrs
  -> Can you cite French law supporting your statement?

neutral  Nikki Scott-Despaigne: I agree with "application" and "report". However, more context is likely to give more certainty.
21 hrs
  -> Yes, agreed.

neutral  Adrian MM.: reads well, but IMO is missing a vital ingredient, namely as an application *inter partes* (now in England & Wales since 1998: 'on notice') vs. ex parte ('without notice' to the other side). The process is 'contradictoire' so adversarial = inter partes.
2 days 16 hrs
  -> The original is missing that distinction -- we don't know if it's inter partes or ex parte.
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45 mins   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): -1
Assignation en extension des opérations d\'expertise
Summons regarding widening of the scope of an expert's report


Explanation:
If an expert or either of the parties wishes to change the scope of an expert’s report, all the parties are summoned to the court in order that their views on the proposed change may be heard.

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Note added at 1 day 18 hrs (2019-03-16 09:37:46 GMT)
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Apart from cases of originating process, an "assignation" is an interlocutory step in the procedure. I suspect that here the document would be better entitled “Assignation en référé en extension des opérations d'expertise”.

The procedure for serving an “assignation” is that the party seeking a particular measure or relief applies to the Court Registry for a date to be set down for a hearing. In other words, there is an application which precedes the issue of a summons.
That party then arranges for a “huissier de justice” to serve a summons (“assignation”) on the other party or parties, giving them notice to attend the hearing on a specified date.
The views of the parties are heard and the judge then makes an interlocutory order.

So far as concerns terminological strictures, I speak as an English lawyer. Whilst the use of the word subpoena is common in the United States, it is not so in the UK. See for instance the “White Book” (Civil Procedure, published by Sweet & Maxwell), Volume 1, Paragraph 34.0.3. (“It was inevitable that the modern jargon of the CPR [Civil Procedure Rules] would abandon the term “subpoena” in use in the High Court and its predecessors since 1467, in favour of the term “witness summons” already in use in the County Courts and the Crown Court.”) Witnesses thus are called to appear before a court in the UK by means of a “witness summons”, not by a subpoena (see also Civil Procedure, Volume 2, Paragraph 2B-34.)
It is simplistic to say that “Summons[es] are for letting parties know they've been sued.” That may be the description of an originating summons but summonses can be served at other stages in the procedure. Likewise, it is rather parochial to say that “the proper term for a witness summons is a subpoena” – it may be in certain jurisdictions but not in all jurisdictions and certainly not in the United Kingdom.

There seems to be some resistance to the use of the word “summons” in the United States, but it is a very usual term in English law, and it is used in contexts other than that of initiating proceedings (e.g. summons for directions – here again an interlocutory step).

I recently translated from French a document entitled “Assignation en référé – Expertise” which clearly related to circumstances similar to those at issue here (and of which I can give but scant details owing to client confidentiality). Suffice it to say that the document was served out of the jurisdiction in accordance with the Hague Convention of 15 November 1965 on a party incorporated in the United States. It was served by a huissier de justice, requiring the party summoned to enter an appearance on a specified date before the President of the court where the proceedings were pending “siégeant comme juge des référés”. The purpose of the summons was to allow the parties to give their views on the terms of an expert’s report to be drawn up by direction of the court – that is more or less what is happening in the present case, except that the aim here is not to initiate, but to extend, the terms of the report (which necessarily involves wider-ranging inquiries).


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Note added at 3 days 20 hrs (2019-03-18 10:43:44 GMT)
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In the present case, we do not know where the questioner is based or, what is more important, the nationality of the client for whom he is working. The client may be in Hong Kong or Singapore or India or Ashton under Lyne and have no connection with the US. So there is no need to become fixated upon US law.

It is important to remember that we are translating a document, not drafting a new one in accordance with any system of law other than the one that applies to the document being translated.

It is therefore appropriate to use English words in the manner in which they are generally used in any part of the English-speaking world. There is no need to make our lives difficult by confining ourselves to a particular system. If we use a word in a manner in which it is used generally, then we are quite safe. We have to assume that the informed reader will accept the general meaning of words, rather than adopting the Humpty Dumpty approach ( “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”)

It is therefore appropriate to examine existing translations of terms in multi-lingual legal systems such as the United Nations and the European Union. It is also appropriate to look at the Roman Dutch law of South Africa (where it is common to serve a summons on judgment creditors and debtors to present themselves in court to determine the available assets before the judgment is finally enforced.
In the USA, the IRS is also empowered to issue a section 7602 summons for the purpose of "inquiring into any offense connected with the administration or enforcement of the internal revenue laws”, in other words a fishing expedition prior to the initiation of any proceedings. Thus, “summons” is used here in a general sense rather than to describe a notice actually commencing proceedings.

The issue here is whether “assignation” can be translated as “summons”. Of course it can! The process of summoning someone merely means calling on him or her to appear before a judicial or other authority (e.g., as mentioned above, before the IRS). It is true that “summons” often means an order to attend legal proceedings that have been initiated against the addressee, but that is not always the case. For example, a jury summons (a term widely used in the United States [e.g. in North Carolina], among other places) is merely an order requiring addressees to present themselves before a court to serve as jurors. And “witness summons” is a term freely used in Wikipedia, as well as being the usual term used in the United Kingdom and many Commonwealth countries (it is worth noting that the population of the British Commonwealth is estimated as 2,400,000,000).

Interlocutory summonses are also common in many jurisdictions. By definition, they are issued after proceedings are commenced and before proceedings are concluded. As in this case. I believe the present case is concerned with an interlocutory summons (“assignation en référé”) where a party or parties are summoned to the courts to express their views on an expert’s terms of reference.

I simply cannot see why the term “summons” has summoned up such objurgation.


Wordwatcher
United Kingdom
Local time: 09:30
Native speaker of: Native in EnglishEnglish
PRO pts in category: 16

Peer comments on this answer (and responses from the answerer)
disagree  Eliza Hall: Summons isn't right here -- it has a very specific legal meaning that isn't the same as the everyday English "to summon." Also, this seems to broaden the scope of the expert's investigation, not specifically the expert report.
1 day 20 mins
  ->  There are various kinds of summonses: witness summonses, summonses for directions, etc. “Assignation” is prescriptive: the addressee is called upon to attend court and present argument. “Request” or “application” lacks force. Summons is indeed correct

disagree  AllegroTrans: No, and they are not "summoned" to court, many such applications are either dealt with by consent or on paper// ANY application can be dealt with by consent if the parties so wish, including a réferé
1 day 11 hrs
  -> Once an "assignation" has been issued, the procedure can no longer be consensual.

neutral  Nikki Scott-Despaigne: This is a possibility but we do need more context.
1 day 22 hrs

agree  Adrian MM.: Right for E&W = England Wales where, pre-1998 Woolf civil reforms, subpoena was the civil term and summons the criminal one, but now merged into the latter summons catch-all or superordinate term.
3 days 17 hrs
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Reference comments


1 day 23 hrs peer agreement (net): +1
Reference: Potential sources of help

Reference information:
http://www.arege-ra.com/wa_files/2014_20Guide_20pratique_20e...

cf. p11

"out au long de la réunion, l’expert doit s’assurer que tous les moyens qui lui sont
donnés sont suffisants pour aboutir à des conclusions sérieuses.
Exemples :
- S’il n’est pas prévu, dans le corps de la mission, de procéder aux relevés
indispensables à ses analyses.
- S’il apparaît qu’une autre ou plusieurs autres parties devraient être « mises en
cause ».
Dans tous les cas, il faut préciser ces éléments dans le compte-rendu d’expertise et,
adresser une requête au tribunal, dans le cadre d’une extension de mission, en
précisant que « telle ou telle extension de la mission paraîtrait nécessaire pour
aboutir dans la mission »."

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Note added at 1 day 23 hrs (2019-03-16 14:19:16 GMT)
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https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JUR...



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Note added at 1 day 23 hrs (2019-03-16 14:21:30 GMT)
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https://www.village-justice.com/articles/breve-ordonnance-co...

More context needed.

Nikki Scott-Despaigne
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 172

Peer comments on this reference comment (and responses from the reference poster)
agree  Adrian MM.
1 day 18 hrs
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3 days 18 hrs
Reference: Assignation - cite the other party to enter an appearance

Reference information:
‚Assignation. Terme générique désignant tout acte d’huissier de justice par lequel le demandeur cite son adversaire à comparaître devant le jude compétent’. Art. 55 Nouveau Cod de Procédure Civile, Le Droit de A à Z. ... assignation en référé: approx. Summons into chambers or a pre-injunctive *notice* of motion > in the London High Court. FHS Bridge's FRE/ENG glossary; ‘summons to attend urgent proceedings’,

No context needed as the process is quite clear.

Adrian MM.
Austria
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 86
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