In this case, the transfer of a business contained a clause prohibiting the transferee from re-establishing itself within a five-kilometre radius of the place of operation of the transferred business.
Suspecting a breach of the clause, the transferor commissioned a private investigator to verify the situation.
The detective’s investigations determined that the transferee was actively involved in the operation of a similar business owned by his wife.
The bulk of the evidence was collected through surveillance that took place intermittently and over several months, between January 2016 and May 2017.
The investigator found that:
- The transferee and his wife arrived at the business together and took care of the opening together;
- The same was true for the closing of the establishment at the end of the day;
- The role of the person concerned was prominent, as it was noted that the business opened late when he was absent and that customers questioned the employees, asking “where is the boss?”;
- The subject was seen advising and collecting money from clients, etc.
On the basis of this investigation report, which was illustrated by a number of photographs, the transferor then sued for breach of the non-reinstatement clause and for compensation for his loss.
The defendant tried unsuccessfully to have the investigation report set aside, arguing that it constituted unfair evidence and a breach of his privacy rights.
Proportionality and Fairness of Evidence
The Nancy Court of Appeal dismissed the case on 12 June 2019, noting that the investigation report was not disproportionate because the investigator had used ‘a non-intrusive working method‘ and had ‘perfectly respected the private life‘ of the assignee and his companion since the surveillance had been ‘limited in time and space‘.
Moreover, the Court of Appeal did not dismiss the report as unfair either, considering on the contrary that the report was “particularly enlightening as to the real role played by Mr ….. in the management of his partner’s business“.
Finally, it should be noted that the Court of Appeal ordered the transferee to pay his opponent a sum in reimbursement of the private investigator’s costs.
The Court of Cassation upheld the appeal decision, stating that “the conditions of the private surveillance of the competing establishment had not disproportionately affected the privacy of Mr …… and that the production of the investigation report was necessary to preserve the rights of the claimant“.
The solution is not new and only confirms that in application of article 9 of the code of civil procedure, the private investigation report is admitted according to the same modalities and under the same reservations as any other evidence, that this report cannot be rejected on the sole grounds that the detective was paid and that its probative value is sovereignly assessed by the judges of the court of first instance.
