In a legal proceeding, the prevailing party may ask for the costs reimbursement by the losing party, especially in a civil proceeding. This may include the private investigation costs which were necessary to provide evidence.
Civil procedure: the article 700 of the French Civil Procedure Code
There are two different types of proceeding expenses, and they answer to different rules.
First, the legal expenses which are listed by the article 695 of the Civil Procedure Code and include the bailiff fees, legal expertise and translation costs, or taxes. The payment of these costs is normally due by the losing party.
The other costs include lawyers fees, non-judicial expertises, bailiff reports or private investigation costs. They are called the “irrecoverable costs”. The article 700 of the Civil Procedure Code allows the judge to order the losing party to pay these costs to the prevailing party:
In all proceedings, the judge will order the party obliged to pay for legal costs or, in default, the losing party, to pay to the other party the amount which he will fix on the basis of the sums outlayed but not included in the legal costs.
In order to get the expenses reimbursement, the prevailing party must require the application of this article through his lawyer.
Criminal procedure: the article 475-1 of the French Criminal Procedure Code
The principle is similar in criminal procedure. Before the Correctional Court, the article 475-1 of the Criminal Procedure Code allows the civil party to claim the expenses reimbursement by the opposing party:
The court orders the perpetrator of the offence to pay the civil party such sum as it determines in respect of any costs not paid by the State and incurred by the civil party.
Before the Assize Court (Criminal Court), the article 375 of the Criminal Procedure Code applies in the same way.
It is important to notice that the judge does not always order the opposing party to pay the costs. It is not sufficient to have won the proceeding, to claim the application of the article 700 of the Civil Procedure Code (or 475-1 of the Criminal Procedure Code) and to justify the expenses. The law gives the judge the opportunity to decide the reimbursement or not:
The judge will take into consideration the rules of equity and the financial condition of the party ordered to pay. He may, even sua sponte, for reasons based on the same considerations, decide that there is no need for such order.
The judge may then order the reimbursement of all the expenses paid by the prevailing party, but also a partial reimbursement or even nothing at all. He takes into account the financial conditions of both parties and the necessity of the expenses within the proceeding.
Get the reimbursement of the investigation costs by the opposing party
Subject to certain conditions related to the incomes, it is possible in France to get a legal aid (total or partial) in order to cover the expenses occuring in a legal proceeding. This aid covers costs such as lawyers or bailiffs fees, but does not apply to the investigation done by a private investigator.
But this does not mean the private investigators fees are not eligible to the expenses reimbursement under the article 700 of the Civil Procedure Code (or 475-1 of the Criminal Procedure Code). It is indeed possible to include the investigation costs within the refund claim.
The prevailing party will then have to present the necessity of the private investigations within the proceeding, and its impact on the evidence provided. For instance in a case of adultery, the private investigation may have been required due to the behaviour of the opposing party who was obscuring the truth. It is then legitimate to ask him for the reimbursement of the expenses under the article 700.
Last but not least, the reimbursement claim is not incompatible with the legal aid, precisely because the legal aid doesn’t cover the private investigation fees. The prevailing party who got a legal aid for the lawyer’s fees may therefore also claim the reimbursement of the private investigator’s fees by the opposing party.