MONACO Law and Practice Contributed by: Stephan Pastor, Emeline Elbaz-Mondeux and Xavier Widawski, CMS Monaco
5. Discovery 5.1 Discovery and Civil Cases
5.2 Discovery and Third Parties Discovery from third parties is possible through a dis- closure application, as stated in 4.1 Interim Applica- tions/Motions and 5.1 Discovery and Civil Cases . 5.3 Discovery in This Jurisdiction Monaco is based on a Roman law system, with adver- sarial civil procedures. The authors are unaware of matters relating to cross-examination, private enquir- ies or the calling of witnesses in civil procedures. Parties must prove the facts they allege by way of external evidence – ie, a party cannot give testimony regarding its own account. Proof is shown by corrobo- rating witness statement or with documents. There are strict rules regarding witness statements. 5.4 Alternatives to Discovery Mechanisms Please see 5.1 Discovery and Civil Cases to 5.3 Dis- covery in This Jurisdiction . 5.5 Legal Privilege Monaco recognises legal privilege in the form of pro- fessional secrecy ( secret professionnel ), violation of which is criminally sanctioned by Article 308 of the Criminal Code with six months to one year of imprison- ment and/or a fine of EUR9,000 to EUR18,000. Such violation can also give rise to professional sanctions. Legal privilege in Monaco protects attorneys regis- tered at the Monaco Bar ( avocats and avocats-défen- seurs ). It does not protect in-house counsel corre- spondences. 5.6 Rules Disallowing Disclosure of a Document The protection of banking or professional secrecy under Article 308 of the Criminal Code prohibits a person from disclosing any information in civil pro- ceedings, even with an order from a court. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief Injunctive relief may be awarded if the applicant can demonstrate that the measure is justified to prevent
Apart from the disclosure application referred to in 4.1 Interim Applications/Motions , certain forms of discovery are discussed in Articles 300 et seq of the Code of Civil Procedure. Article 300 states that if, before any trial, there is a legitimate reason to preserve or establish proof of facts on which the outcome of a dispute may depend, legally admissible investigative measures may be ordered at the request of any interested party, on ex parte application, when the circumstances require that the measure not be taken in adversarial proceedings, or in summary proceedings. Admissible investigative measures may include obtaining evidence held by future opponents or third parties. The enforcement of these measures is super- vised by the court. Other legal provisions in the following articles also fall under the powers of the judge. • Article 309 (personal inspections by the judge): the court shall make any observations, evaluations, assessments or reconstructions it deems neces- sary, visiting the premises, if necessary, with the parties present or summoned. It shall also gather all evidence likely to enlighten it and shall hear such people as it sees fit for information purposes. • Article 312 (questioning of the parties): the court may, in any matter, examine the parties or some of them on the facts of the case. It may decide that the examination shall take place before one of its members. To the best of the authors’ knowledge, these provi- sions have never been applied. Article 324 states that the parties can provide the court with third parties’ witness statements, obtained either from witness statements given to the court or through an inquiry. The authors are unaware of any inquiry having been performed by a civil judge.
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