Lapse of proceedings: definition and legal basis

Every year, thousands of legal proceedings get bogged down in the French courts. Some get bogged down by deliberate strategy, others by simple negligence. The legislator has provided a mechanism to penalise this procedural inertia: the lapse of proceedings. This mechanism, which is often overlooked, is a powerful tool for regulating judicial time.

What is lapsing of proceedings?

Lapse of proceedings is a procedural incident that results in the termination of proceedings due to inaction by the parties for at least two years. From Latin perimeter meaning "to annihilate, destroy", it sanctions the parties' failure to take the necessary steps to advance their case.

Peremption should not be confused with other related concepts. Unlike extinctive prescription, which extinguishes the legal action itself, la péremption only extinguishes the proceedings in progress. Article 389 of the Code of Civil Procedure (CPC) states that "lapse of time does not extinguish the action".. It also differs from the lapse of a procedural act that was initially valid but has become ineffective because a subsequent formality has not been completed.

The Cour de cassation has clarified the nature of la péremption by stating that it "draws the consequences of the parties' failure to take the necessary steps to bring the case to a successful conclusion and pursues a legitimate aim of proper administration of justice and legal certainty". (Civ. 2e, 16 Dec. 2016, no. 15-27.917).

From Roman origins to the 2017 reform

The history of expiry dates back to Roman law, where it already constituted "a measure of order dictated by the interests of the proper administration of justice".. In France, it appeared in ancient law and was enshrined in the Ordinance of Villers-Cotterêts of 1539.

The old Code of Civil Procedure of 1806 set the limitation period at three years and allowed the plaintiff to 'cover up' the lapse of time by performing a valid act before the adversary invoked it. This approach reflected the idea that the lapse of time implied a tacit waiver by the plaintiff.

The 1975 Code of Civil Procedure marked a significant change by reducing the time limit to two years and removing the possibility of covering the lapse of time. This change reflected a paradigm shift: lapse of time became less a presumption of abandonment than a sanction for procedural inertia.

The latest major development dates from Decree No. 2017-892 of 6 May 2017, which authorised the judge to raise the issue of lapsing ex officio, thereby strengthening its role as an instrument for relieving court congestion.

The current legislative framework

The lapse of proceedings is governed by articles 385 to 393 of the Code of Civil Procedure. Article 386 sets out the principle: "The proceedings lapse if neither party takes any action for two years.

Three cumulative conditions are necessary for the expiry date to be reached:

• The existence of a body
• Failure to take due care for two years
• A party may invoke the lapse of time or the court may establish it of its own motion

Expiry does not occur automatically. According to article 388 of the CPC, it "must, on pain of inadmissibility, be requested or opposed before any other plea". and she "is a matter of right. In other words, if the conditions are met, the judge must make a finding.

When does it apply and when is it excluded?

The limitation period applies before all civil courts, whether judicial tribunals, appeal courts or even the Cour de cassation (articles 1009-2 and 1009-3 of the CPC).

It may apply to any proceedings, including those involving public policy. The Commercial Chamber of the Cour de cassation has ruled that "the proceedings are affected by the lapse of time, even if public policy is at stake". (Com. 21 Nov. 1995, no. 93-20.095).

On the other hand, some cases do not lapse:

• Criminal proceedings, including civil proceedings
• Arbitration bodies subject to conventional time limits
• Collective proceedings, which do not constitute proceedings within the meaning of article 386 of the CPC
• Cases where the procedure is beyond the control of the parties (fee disputes, verification of claims, etc.)

The 2nd Civil Chamber of the French Supreme Court (Cour de cassation) handed down four major rulings on 7 March 2024. Henceforth, "When the parties have fulfilled all the obligations incumbent upon them within the time limits set, in particular in accordance with the provisions of articles 908, 909 and 910-4 of the Code of Civil Procedure, they no longer have any useful diligence to carry out in order to move the case forward. The direction of the proceedings then passes from them to the Conseiller de la Mise en Condition. As a result, once the parties have fulfilled all the procedural obligations incumbent upon them, the limitation period no longer applies to them. (Civ. 2e, 7 March 2024, no. 21-19.475).

Practical implications for litigants

For litigants, the consequences of expiry are severe:

1. Termination of proceedings without the possibility of relying on acts performed during the expired proceedings
2. Loss of the effect of interrupting the limitation period of a claim
3. In the event of an appeal or objection, the contested judgment acquires the force of res judicata.
4. The costs of the out-of-date proceedings to be borne by the person who brought the proceedings

A concrete example: a creditor who summons his debtor and then remains inactive for two years will not only see his proceedings extinguished, but also runs the risk of his action becoming time-barred if he acted shortly before the expiry of the limitation period.

For lawyers, vigilance is required. Their professional liability may be incurred for loss of chance of success of the action if the lapse is established through their fault (Civ. 2e, 10 July 2014, no. 13-20.606).

In practice, it is essential to be aware of the acts that interrupt the limitation period. The following are acts of due diligence: substantial pleadings, the appointment of a lawyer, a request to set a hearing, etc. Conversely, the following are not acts of due diligence: a change of lawyer, settlement discussions, or a simple request for referral.

The procedural intricacies relating to lapsing often justify the use of experienced legal counsel, particularly to determine the periods when no diligence is required on the part of the parties or to analyse the effects of a link between several proceedings.

Our law firm regularly assists litigants faced with issues of limitation periods, both to invoke this incident and to protect themselves against it. Please do not hesitate to contact us for a personalised analysis of your procedural situation.

Sources

• Code of Civil Procedure, articles 385 to 393
• Civ. 2e, 16 Dec. 2016, no. 15-27.917
• Civ. 2e, 7 March 2024, no. 21-19.475, no. 21-19.761, no. 21-20.719 and no. 21-23.230
• Com. 21 Nov. 1995, no. 93-20.095 and no. 93-21.217
• Civ. 2e, 10 July 2014, no. 13-20.606
• VEYRE, Liza. Péremption d'instance, Répertoire de procédure civile, Dalloz, February 2020 (updated March 2024)