Civil procedure tolerates mistakes, but not all of them. A defective writ of summons, an incorrect statement of appeal, a late legal argument - these are all irregularities that can compromise your chances of winning your case. The question is not theoretical: when can these errors be corrected to save the case? When is regularisation impossible?
1. The principle of the regularisation option
Civil procedure is not a game of massacre where the slightest error results in the permanent loss of the right to act. Articles 121 and 126 of the Code of Civil Procedure allow procedural errors to be remedied in certain cases.
Content of the plea and material possibility
Regularisation is only legally possible when it is materially conceivable. Certain irregularities, by their very nature, cannot be corrected:
- The exception of lapse of time (extinction of proceedings after two years of inaction)
- Dismissal based on prescription or foreclosure
- The defence of lack of liability on the merits
However, it is perfectly possible to:
- Redoing a deed vitiated by a formal defect
- Completing an incomplete act with subsequent conclusions
- Giving a power of attorney to a representative who did not have one
- Withdrawing from parallel proceedings in the event of lis pendens
The Court of Cassation points out that "the orders of the Pre-Trial Judge ruling on a procedural objection have the force of res judicata, whether or not they put an end to the proceedings". (Civ. 2e, 9 January 2020, no. 18-21.997).
Limitations linked to the spirit of the legal requirements
Even if materially possible, regularisation is only admissible if the spirit of the requirement that has been disregarded does not stand in the way.
Thus, no regularisation is possible when the plea is based on the absence of a formality prior to the request, as illustrated by the decision of the 3rd Civil Chamber of 16 November 2017 (no. 16-24.642), concerning non-compliance with a contractual clause instituting a prior conciliation procedure.
Similarly, regularisation is excluded when a condition must be fulfilled at a specific time, as in the case of the special power of attorney that must accompany the declaration of forgery (Civ. 2e, 13 July 1999, no. 97-12.116).
2. Conditions for applying the regularisation
Earlier than the judgment
In order to neutralise a defence, the regularisation must take place before the judge rules on the defence (art. 121 and 126 CPC). This formula applies not so much to the judgment as to the closing order or the closure of the hearing, depending on whether the proceedings are written or oral.
An important question: can an irregularity that occurred at first instance be rectified on appeal?
The case law answers in the affirmative. Regularisation on appeal is permitted both for defences on the merits and grounds for dismissal (Civ. 2e, 12 June 2008, no. 07-12.510) and for objections (Soc. 26 January 2016, no. 14-11.992).
There are limits to this possibility. It becomes impossible to regularise the situation on appeal when the devolutive effect of the appeal has not come into play, i.e. when this remedy seeks to set aside the judgment and the matter has not been validly referred to the first judge (Civ. 2e, 7 March 1984, no. 82-12.804).
No foreclosure
For certain pleas in law, the claim must be regularised "before any foreclosure", i.e. before the expiry of the time limit for bringing an action.
For a long time, this requirement was systematically applied to objections to nullity based on formal defects (art. 115 CPC) and, by extension of case law, to objections based on substantive defects (Civ. 3e, 14 February 1990, no. 88-18.422).
Conditions specific to certain resources
The exception of nullity on the grounds of formal defect requires that the regularisation leaves no grievance unresolved (art. 115 CPC). In practical terms, the complaint is assessed as the disorganisation of the defence and the risk of losing the case.
As regards the plea of lack of standing, article 126, paragraph 2 of the Code of Civil Procedure specifies that the claim must be put in order by the person with standing "before any time limit".
3. The impact of the reform of the statute of limitations
Act no. 2008-561 of 17 June 2008 reforming the statute of limitations in civil matters radically changed the rules governing regularisations.
Effects on objections to nullity
Prior to this reform, an invalid writ of summons did not interrupt the period of limitation or foreclosure. Once this period had expired, it was no longer possible to regularise the situation.
Article 2241, paragraph 2 of the Civil Code now provides that a legal action interrupts the limitation and time-barring periods, even where the act of bringing the action is annulled on the grounds of a procedural defect.
The major consequence is that the requirement to regularise a claim before it becomes time-barred has lost its raison d'être in the case of formal nullities. Case law has confirmed this in a number of rulings (Civ. 1re, 25 November 2010, no. 09-69.124; Civ. 2e, 19 November 2020, no. 19-13.642).
Modification of the system of nullities for substantive defects
The same trend can be observed for objections to nullity based on a substantive defect. The Court of Cassation has ruled that such defects also constitute "procedural defects" within the meaning of article 2241 of the Civil Code (Civ. 3e, 11 March 2015, no. 14-15.198).
Consequently, the condition that the claim is not time-barred is no longer required (Civ. 2e, 1 June 2017, no. 16-14.300; Civ. 2e, 17 September 2020, no. 19-18.608).
Certain dismissals upheld
On the other hand, for pleas of non-receivability relating to lack of standing, the requirement of absence of foreclosure remains (Com. 13 November 2013, no. 12-28.572; Com. 3 November 2015, no. 14-16.750).
This is logical: article 2243 of the Civil Code maintains the nullity of the interruption in the event of rejection of the claim, and this rejection may result from a plea of non-receivability.
As for procedural grounds for dismissal, the solutions vary. The condition that the proceedings are not time-barred is required in the case of a failure to give reasons for the statement of appeal (Civ. 2e, 10 December 2020, no. 19-12.257), but not in the case of inadmissibility due to the incomplete content of the partition summons (Civ. 1re, 28 January 2015, no. 13-50.049).
The rules on regularisation may seem technical, even Byzantine. But there is a logic behind them: respecting the balance between the right of access to the courts and legal certainty. If you don't get to grips with them, you could lose your case for good.
Given the complexity of the subject and the issues it raises, personalised advice is essential. Don't wait for your case to be compromised by a procedural error.
Sources
- Code of Civil Procedure, articles 121, 126, 115, 789, 794 and 795
- Civil Code, articles 2241 and 2243
- Civ. 2nd, 9 January 2020, no. 18-21.997, Bull. civ. p. 210
- Civ. 3e, 16 November 2017, no. 16-24.642, Bull. civ. III, no. 123
- Civ. 2e, 13 July 1999, no. 97-12.116, Bull. civ. II, no. 135
- Civ. 2e, 12 June 2008, no. 07-12.510
- Civ. 2e, 7 March 1984, no. 82-12.804, Bull. civ. II, no. 45
- Civ. 3e, 14 February 1990, no. 88-18.422, Bull. civ. III, no. 50
- Civ. 1st, 25 November 2010, no. 09-69.124
- Civ. 2nd, 19 November 2020, no. 19-13.642, Bull. civ., p. 78
- Civ. 3e, 11 March 2015, no. 14-15.198, Bull. civ. III, no. 31
- Civ. 2e, 1st June 2017, no. 16-14.300, Bull. civ. II, no. 116
- Civ. 2nd, 17 September 2020, no. 19-18.608, Bull. civ. p. 361
- Law no. 2008-561 of 17 June 2008 reforming the statute of limitations in civil matters
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