Appointment of an expert suspected of partiality by one of the parties

Facts

The Municipality of A. and the architectural firm B. AG are in dispute over a work carried out by the latter. On 15 December 2011, B. AG filed an action for payment of additional fees before the Civil Court of the District of Sarine (FR). The defendant municipality has filed counterclaims for a reduction in fees and damages. The President of the Civil Court, to whom the conduct of the proceedings had been delegated, invited the parties to propose the names of experts. B. AG suggested, among others, architect C., whose impartiality the municipality has questioned. The President nevertheless appointed the expert in question, considering that the grounds for recusal raised against him were unfounded. The municipality appealed to the Cantonal Court of the Canton of Fribourg, which confirmed the decision taken. The municipality then filed a civil appeal with the authority of this Court.

Considerations

The FSCA rejected the grievance challenging the competence of the delegated judge to rule on the grounds for recusal. It considered that the term "court" used in Art. 50(1) CPC does not necessarily mean a collegiate authority, but simply that the cantons must designate a judicial authority whose decision can be challenged by an appeal. In accordance with Art. 4(1) CPC, the cantons freely determine the competent judicial authority.

The appointment of an expert is an order for the taking of evidence that can be made by a delegated judge, including when it dismisses the grounds for recusal raised by a party. When a collegiate…