When the claimant was appealing from a tribunal’s holding in a divorce suit by her husband that she had been at fault and was consequently not entitled to any alimony, her attorney failed to submit certain evidence in time; in her present suit against him the Court of Appeal held that had the fresh evidence been before the earlier appeal court, it would certainly have viewed the husband’s complaints against the wife in a different light; and accordingly inferred that the wife had had a chance of countering on appeal her husband’s claim for a divorce and that this chance had been lost owing to the attorney’s fault in failing to submit the evidence in due time. This decision the Court of Cassation held to be within the Court of Appeal’s sovereign powers of appreciation of the facts.

Subsequent Developments

A court of appeal, which deciding that failure by an attorney (avoué) to make his submissions (conclusions) before the closure order causes his client to lose the chance of having a divorce decree which was pronounced against her amended on appeal, justifies its decision legally by the following findings. The appeal jurisdiction seised of the divorce proceedings had not been able to examine the grounds contained in the inadmissible submissions from the appellant, and was confined to repeating the reasons of the original judges, without being able to take account of the arguments invoked by the woman in support of her claims. The court of appeal considers, in the exercise of its sovereign powers of appreciation, that if the submissions rejected had been examined, it was certain that the appeal jurisdiction would have been led to evaluate the grievances raised by the husband against his spouse in a different context".

Case law maintained.

The loss of a chance of winning an action constitutes a detriment which is reparable on condition that the chance is real and serious, which case law assesses in a relatively strict manner. If the reality of the detriment is established when the risk of failure of the action was almost nil (Civ 1, 18 June 1996, unpublished, pourvoi no 9412646: "the court of appeal, whilst accepting that, by the fault of their counsel, Mr and Mrs X... had been deprived of the chance of seeing a new rent fixed, has found that the risk of failure of the action was almost nil (...); that it has, in the exercise of its sovereign power of appreciation, considered that, as a consequence, the detriment suffered by Mr and Mrs X... corresponded to the loss suffered as a result of renewal of the lease on the former conditions as to rent"). On the other hand, responsibility on the part of the advocate (or of the attorney) will not arise when, notwithstanding the fault committed by the agent (mandataire), there is, properly speaking, no loss of a chance (Civ 1, 26 November 1996, pourvoi no 94921126, unpublished: "after having found, by its sovereign power of appreciation, that taking account of the financial situation of the tenants, Mr and Mrs X... did not have any chance of obtaining payment of the rents which were due to them, the court of appeal could deduce from this that the detriment claimed by them did not result directly from the negligence committed by the SCP in the execution of its functions"). The Cour de cassation requires of the judges of the lower courts that they should determine precisely the chances of success or failure of the action lost by the fault of the advocate or the attorney, and it quashed a judgment stating that it was impossible to know for certain what would have been the result of the proceedings if the advocate had not committed a fault (Civ 1, 2 April 1997, Bull no 118; see likewise Civ 1, 8 July 1997, Bull no 234: quashing of a judgment stating that the advocate's negligence which prevented an appeal on a point of law (pourvoi en cassation) from following its course "had not had the certain consequence of depriving them of restitution in their assets (patrimoine des biens) previously sold", without describing the lack of probability of success of this appeal which had been lodged). As to the assessment of the damage suffered, cf Civ 1, 16 July 1998 (Bull no 260: "Reparation for the loss of a chance must be measured against the chance lost, and cannot be equal to the advantage which this chance would have secured if it had been realised", in a case in which, because of the negligence of the attorney, the appeal lodged had been declared invalid).

Translation by Raymond Youngs

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