In the procedural jungle, a defective act can be saved. Regularisation is a valuable technique for avoiding the annulment of a procedural act. But beware: not all defects can be rectified in the same way, or within the same timeframe.
Regularisation of acts vitiated by formal defects
Retroactive effect of the adjustment
Article 115 of the Code of Civil Procedure provides that nullity is covered by subsequent regularisation of the instrument. This regularisation operates retroactively: the deed produces its effects as soon as it is initially performed.
The Court of Cassation confirmed this in a ruling on 16 November 2017 (Cass. 2e civ., 16 Nov. 2017, no. 16-23.796): a formal defect that has been regularised is deemed never to have existed.
The regularisation period since the 2008 reform
Prior to the Act of 17 June 2008, the claims had to be regularised before the expiry of the limitation period.
The situation has changed. Article 2241, paragraph 2 of the Civil Code now provides that "a legal action interrupts the limitation period as well as the period of foreclosure" even where "the act of bringing the action before the court is annulled as a result of a procedural defect".
Practical consequences? The Second Civil Chamber has ruled that regularisation may take place "at any time before the judge rules on the validity of the statement of appeal" (Civ. 2e, 1 June 2017, no. 16-14.300).
The disappearance of the grievance as a condition
To be effective, article 115 of the Code of Civil Procedure requires that the regularisation must not leave any grievance unresolved.
The case law punishes appeal courts that declare a deed null and void without checking whether the regularisation carried out leaves any prejudice remaining (Civ. 2e, 13 June 1990, no. 88-19.828).
Example: a failure to make a preliminary attempt at conciliation before the industrial tribunal is covered by a conciliation hearing held after the hearing before the adjudication board (Soc. 18 Nov. 1998, no. 96-41.005).
Regularisation of acts with substantive defects
Regularisable defects vs. non-regularisable defects
Not all substantive defects can be remedied. Article 121 of the Code of Civil Procedure states: "In cases where it can be covered, nullity will not be declared if the cause of the nullity has disappeared by the time the court rules".
Irreparable defects generally concern cases where the defect amounts to a total lack of will:
- Action brought by a deceased person (Civ. 3e, 5 Oct. 2017, no. 16-21.499)
- Act performed by an absorbed company (Civ. 2e, 20 Jan. 2005, no. 01-11.491)
- Summons issued to a non-existent person (Civ. 2e, 23 Sept. 2010, no. 09-70.355)
On the other hand, the following can be regularised:
- The appointment of a lawyer not registered with the local bar (Civ. 2e, 5 May 2011, no. 10-14.066)
- Summons issued by a mayor without authorisation from the town council (Civ. 2e, 20 Oct. 2011, no. 10-16.443)
The period for regularisation: "until the judge rules".
Article 121 of the Code of Civil Procedure allows for regularisation "until such time as the court has given its decision".
This formula has been interpreted by the case law: it does not derogate from the rules "which prohibit the parties from concluding or communicating documents after the close of the debates" (Civ. 2e, 3 June 1998, no. 96-21.173).
Case law is divided on the question of regularisation on appeal. Some rulings allow it (Civ. 2e, 25 March 2010, no. 09-13.672), while others rule it out (Civ. 1re, 23 Feb 2011, no. 09-13.867).
Interactions with prescription and foreclosure
The regularisation must take place before any foreclosure or limitation period (Civ. 3e, 13 Jan. 2010, no. 09-10.398).
However, the Court of Cassation has ruled that "since paragraph 2 of Article 2241 of the Civil Code does not distinguish between formal defects and substantive irregularities, a writ of summons, even if affected by a substantive defect, has an interruptive effect" (Civ. 3e, 11 March 2015, no. 14-15.198).
This solution protects the litigant from the drastic effects of a procedural error.
Regularisation techniques in practice
Case law examples of effective regularisations
- A brief filed with the Administration and not served is regularised by its service before the opening of the debates (Com. 1er déc. 1987, n° 86-12.729).
- The failure of the regional prefect to appear before the conciliation committee may be remedied by summoning him to appear before the adjudication committee (Soc. 16 Apr. 2008, no. 06-44.539).
- The irregularity resulting from representation by an honorary lawyer is rectified by the filing of pleadings drafted by a qualified lawyer (Civ. 2e, 10 Jan. 2019, no. 17-28.805).
Regularisation of first instance defects on appeal
The town council's decision during the course of the proceedings allows the summons issued by the mayor without prior authorisation to be regularised (Civ. 2e, 20 Oct. 2011, no. 10-16.443).
The General Code of Local Authorities also recognises the power of mayors and chairmen of general or regional councils to take "all protective measures or measures to interrupt forfeiture" without prior authorisation (art. L.2132-3, L.3221-10 and L.4231-7 CGCT).
Justification of special power vs. regularisation
Proof of a special power of attorney (art. 416 CPC) may be provided after the expiry of the limitation period.
The full court has ruled that proof of the special authority of the person making a claim declaration on behalf of the creditor may be provided until the court has given its ruling (Cass., ass. plén., 4 Feb 2011, no. 09-14.619).
This is not a genuine regularisation, but simply the production of proof that the power existed at the time the act was performed.
Mastering these rules can save a procedure that has been compromised. Getting the right legal advice as soon as you have any doubts about the validity of an act can often help you avoid the irreparable. Our firm can help you secure your procedures, with a responsiveness that can make all the difference between a case saved and a case lost.
Sources
- Code of civil procedure: articles 115, 118, 121
- Civil Code: article 2241
- Cass. 2nd civ., 16 Nov. 2017, no. 16-23.796
- Cass. 2nd civ. 1st June 2017, no. 16-14.300
- Cass. 3rd civ., 11 March 2015, no. 14-15.198
- Cass. 2nd civ. 10 Jan. 2019, no. 17-28.805
- Cass. plenary session, 4 Feb 2011, no. 09-14.619
- Cass. 3rd civ., 5 Oct. 2017, no. 16-21.499
- Répertoire de procédure civile, Nullité, Lucie MAYER, July 2023
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