Article 145 CPC: Pre-Trial Measures to Secure Evidence

In certain specific circumstances, a party may have a legitimate interest in securing evidence that is not readily available prior to bringing legal action.

Purpose of preparatory inquiries in futurum 

Pursuant to the first paragraph of Article 145 of the French Code of Civil Procedure:

"Where there is a legitimate reason to preserve or establish, before any trial, evidence of facts upon which the resolution of a dispute may depend, legally permissible preparatory inquiries may be ordered at the request of any interested party, either by way of an ex parte application or summary proceedings.”

This provision allows any person who can demonstrate a legitimate reason to apply to the court, before any trial, for a preparatory inquiry in order to preserve or establish evidence of facts upon which the resolution of a future dispute may depend.

The benefit of the procedure under Article 145 of the French Code of Civil Procedure is to prevent the spoliation or loss of evidence in anticipation of trial.

In business law, these measures are used in specific contexts, such as:   

•    In unfair competition matters: To gather evidence of unfair practices by petitioning the court to appoint a court enforcement officer to conduct surprise inspections. The purpose is to seize files or documents that may demonstrate the disclosure of trade secrets, the misappropriation of customer databases by former employees, or the systematic and targeted solicitation of customers.

•    In corporate matters: To request a management audit (expertise de gestion) or an order compelling the disclosure of corporate records to a shareholder, provided the petitioner has first attempted to exercise its statutory right to information.

•    In commercial or real estate disputes: To seek the appointment of a court enforcement officer to perform on-site findings, conduct inventories, or carry out compliance checks.
 
It is important to note that when the court grants a request for a preparatory inquiry before any trial, the statute of limitations applicable to the underlying claim is suspended. 

Conditions for the application of Article 145 of the French Code of Civil Procedure

To obtain a court order for preparatory inquiries under this Article, strict conditions must be satisfied. 

Absence of pending proceedings on the merits

The court may only order preparatory inquiries in futurum if the dispute for which the measure is sought is not already pending before a court asked to rule on the merits. Indeed, the very purpose of these measures is to enable a party to gather evidence prior to any adjudication on the merits.

Existence of a legitimate reason to preserve or establish evidence

The requested measure must be justified by a legitimate reason, namely the necessity to preserve or establish evidence of facts upon which the resolution of a future dispute may depend.

The assessment of whether such a legitimate reason exists falls within the discretionary power of the court hearing the application.

 To be granted, a request for preparatory inquiries in futurum must demonstrate an initial showing of evidence rendering the success of a potential legal action plausible. Absent a minimum set of objective elements, the court must deny the request. 

Indeed, the French Code of Civil Procedure specifies that preparatory inquiries are not intended to compensate for the plaintiff’s failure to produce evidence .

Accordingly, when ruling on a request for preparatory inquiries in futurum, the court must, in particular, verify:

•    The existence of a potential dispute, and the fact that the application is not manifestly unfounded.

•    The usefulness and relevance of the requested measure. In this regard, the measure should not be ordered if the applicant can obtain the evidence by its own means , if it serves no further purpose compared to a privately commissioned expert report, or if the dispute can be resolved based on the evidence already available .

Proportionality of the measure and respect for the adversarial principle

The court must consider the legitimate interests of the party against whom the preparatory inquiry is sought, including the right to be heard, locus standi, and proportionality of the interference with such party’s rights.

Derogation from the adversarial nature of the proceedings is permitted only where the applicant is justified in not calling upon the opposing party to be heard. This requires specific and substantiated grounds, such as a concrete risk that the evidence may be concealed or destroyed. Such risks must be clearly identified both in the request and in the court order granting the measure.

The court must also ensure that the requested measure is strictly limited to what is necessary for the resolution of the dispute. This implies the rejection of any overly broad requests or so-called "fishing expeditions”. Article 145 may not be used as a tool for general investigations or for the purpose of identifying a potential basis for an unsubstantiated legal action.

Finally, the court must ensure that the rights of the party subject to the measure are respected, including, where applicable, the right to privacy, the attorney-client privilege, and the protection of trade secrets. Depending on the circumstances, these rights may prevail over the requested preparatory inquiry.

Choice of procedure: summary proceedings or ex parte application

Article 145 gives litigants the option of seeking preparatory inquiries either through summary proceedings, in which the adversarial principle is respected, and each party is given the opportunity to present its arguments on the merits of the requested measure, or by way of an ex parte application, a non-adversarial procedure in which the court hears only the applicant, without notice to the opposing party.

As the adversarial principle constitutes a fundamental guarantee of the right to a fair trial, an application for preparatory inquiries in futurum on an ex parte basis is permissible only where the circumstances mandate a departure from that principle, in particular where such a departure is necessary to prevent the concealment or destruction of evidence.

For example, this applies when a company seeks to prove that a competitor has misappropriated its customer database. It is clear that if the opposing party were given notice and the opportunity to be heard prior to an inspection by a court enforcement officer at its premises, there would be a clear risk that all traces of the disputed data might be erased from its IT systems before the measure is actually carried out.

When ruling on a request for preparatory inquiries under Article 145 of the French Code of Civil Procedure, the court issues an order, which may be challenged on appeal.

Where a preparatory inquiry has been ordered on an ex parte basis, the party subject to the measure may apply to the issuing court to have the order set aside if it considers that the requirements of Article 145 were not met or that the measure, granted without the opportunity for adversarial debate, constituted an unjustified infringement of its rights.


Article 145 of the French Code of Civil Procedure stands as a particularly effective evidentiary tool for parties in commercial litigation.

Its use, however, requires that the requested measure be precisely targeted, proportionate, and properly justified to prevent any abuse of process or violation of the fundamental rights of the party against whom it is sought.

In this context, the role of legal counsel is pivotal. Counsel assesses the advisability of the procedure, structures the application, and ensures its proper and legally secure implementation in compliance with the applicable legal framework and the respective rights of the parties.

Soulier Bunch is available to analyze your case and to help you identify and secure the evidence necessary to safeguard your interests prior to any commercial litigation.