The plenary session of the French Court of Cassation recently handed down an important decision on the admissibility of unfair evidence in civil cases1.
In a reversal of its case law, the Court judged that unfair evidence is not in principle inadmissible in civil cases.
In this case, a company had dismissed one of its employees for gross misconduct and wished to justify the reality of the reason for the dismissal by producing audio recordings obtained without the employee's knowledge. The Court of Cassation reversed the decision of the Court of Appeal, which had rejected these documents on the grounds that, in civil proceedings, disloyalty in obtaining or producing evidence does not necessarily mean that it should be excluded from the proceedings.
In the end, France's highest court followed the principles laid down by the European Court of Human Rights, which held that when the right to evidence conflicts with other rights and freedoms, in particular the right to privacy, it is up to the judge to weigh up the various rights and interests involved in order to determine whether the inadmissibility of the evidence undermines the fairness of the proceedings.
The application of this case law, particularly in family law, could have major consequences if unauthorized audio recordings or stolen correspondence for instance become admissible evidence.
Monegasque courts, inspired by this new French case law, could in turn decide to accept unfair evidence in civil matters if it represents the only means of defence.
Footnote
1. Cass.ass.plén, 22 déc 2023 n°20-20648
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