Invoking the lapse of proceedings: procedures and strategies

Lapse of proceedings, a little-known procedural sanction, is a formidable weapon in the legal arsenal. It allows proceedings to be terminated when the parties remain inactive for two years. But who can invoke it, and how can it be used effectively?

Who can invoke the expiry date and how?

Article 387 of the Code of Civil Procedure clearly states that "any of the parties may request the expiry of the limitation period".. This wording leaves no room for ambiguity - any party to the proceedings, whether plaintiff or defendant, may invoke this procedural incident.

The Court of Cassation has confirmed this broad interpretation in a number of rulings, notably in its decision of 28 June 2012 (Civ. 2e, no. 11-17.873), in which it stated that "the diligence of any of the parties interrupts the limitation period".. By logical extension, each of them can therefore take advantage of it.

In order for the lapse of time to operate, it must be established by the judge. It never occurs automatically, unlike certain prescriptions.

The two ways in which the parties can invoke the decision

There are two ways for litigants to invoke the lapse of time:

• By action When a party observes that the two-year period has elapsed without due diligence and directly asks the court to declare that the time limit has expired.
• By way of exception Where a party raises this plea against an opponent who has just performed an act after the expiry of the limitation period.

Unlike the previous regime (under the old Code of Civil Procedure of 1806), it is now impossible to 'cover up' the lapse of time by performing a late act. Article 387, paragraph 2 explicitly allows the lapse of time to be set up against "a party who performs an act after the expiry of the time limit".

This development marks a turning point in the concept of the lapse of time, which has been transformed from a presumption of abandonment to a genuine sanction for procedural inaction.

The innovation of 2017: expiry raised ex officio

Until Decree No. 2017-892 of 6 May 2017, the judge did not have the power to raise the issue of lapsing of his own motion. This power is a major innovation.

Article 388, paragraph 2 of the Code of Civil Procedure now authorises the court to declare of its own motion that a claim is time-barred. "after inviting the parties to submit their observations".. This last requirement is a reminder of the fundamental obligation to respect the adversarial process, in accordance with article 16 of the same code.

This reform reveals the legislator's desire to relieve the courts of their workload by allowing dormant cases to be extinguished. It transforms the lapse of time into a genuine tool for managing the flow of cases.

Crucial procedural aspects

When to invoke the expiry date?

The time limit must be invoked once the two-year time limit has expired, but not before. This rule, which derives from articles 386 and 387 of the Code of Civil Procedure, has been confirmed by case law (Civ. 2e, 23 Oct. 1974, no. 73-12.960).

More importantly, article 388, paragraph 1 requires that The "péremption" must, on pain of inadmissibility, be requested or opposed before any other plea".. Failure to comply with this rule will result in the incident being inadmissible.

In practical terms, if you have already brought an action on the merits, raised a plea of lack of jurisdiction or invoked the nullity of the first instance judgment, you have implicitly waived your right to invoke the lapse of time (Civ. 2e, 15 Feb 1995, no. 93-13.960).

Which judge should I refer to?

Before the judicial court or the court of appeal, when the case has been entrusted to a pre-trial judge, it is he who has exclusive jurisdiction to hear the incident of lapse of time.

Article 789, 1° of the Code of Civil Procedure (for the Judicial Court) and Article 907 (for the Court of Appeal) clearly establish this exclusive jurisdiction. Failure to comply with this rule means that the claim is inadmissible.

What form should it take?

No specific form is required by law. However, where representation is compulsory, the application must be made in the form of a submission by a lawyer.

A particular feature of the case law deserves to be emphasised: it is possible to invoke the lapse of time and to conclude on the merits in the same pleadings, but only in the alternative (Civ. 2e, 11 Jan. 1995, no. 92-13.102).

The judge's decision and appeals

The automatic nature of the expiry date

Where the conditions are met, the court is obliged to declare that the action is time-barred. Article 388, paragraph 1 specifies that it "is by operation of law". This wording contrasts with the previous regime, which left the court a margin of discretion.

Case law confirms this automaticity: the judge simply has to check whether the objective conditions for lapse have been met (Civ. 2e, 8 Dec. 2005, no. 03-19.947).

Possible remedies

The decision on the lapse of proceedings may be appealed in accordance with specific rules:

• For a judgment at first instance that upholds the incident: immediate appeal possible (article 544, paragraph 2 CPC)
• For a judgment dismissing the incident: appeal only with the judgment on the merits (article 545 CPC)
• For an order by the Pre-Trial Judge: appeal within 15 days of service (article 795 CPC)
• For an order by the Conseiller de la Mise en Condition: referred to the court within 15 days (article 916 CPC)

The Court of Cassation has clarified that even the order dismissing the incident of lapse may be appealed, as it is an incident "of such a nature as to put an end to the proceedings" (Civ. 2e, 18 Apr. 2019, no. 17-21.189).

Litigation strategies around the expiry date

For those who wish to take advantage of it

1. Keep a close eye on deadlines Keep a precise schedule of the most recent work carried out.
2. Don't act prematurely To apply: wait until the full two-year period has elapsed.
3. Never conclude on the merits before invoking the expiry of the limitation period or you'll lose this option for good.
4. Check that there are no interruptive procedures To ensure that the time limit has not been interrupted by any act, the file must be thoroughly explored.

For those wishing to protect themselves against it

1. Regularly perform procedural acts each stage interrupts the delay, which starts again from zero.
2. Applying for a stay of proceedings According to article 392, paragraph 2 of the CPC, it interrupts the limitation period.
3. Applying for legal aid It also interrupts the time limit (Civ. 2e, 19 Nov. 2009, no. 08-16.698).
4. On appeal, after having concluded within the time limits of Articles 908 and 909 (Civ. 2e, 16 Dec. 2016, no. 15-27.917).

Expiry of the limitation period is a powerful litigation technique, the use of which requires perfect mastery of the procedural rules. Its delicate handling requires in-depth analysis of the case and constant vigilance. An experienced lawyer can turn this incident into a decisive asset in your legal strategy or protect you against it being invoked by your opponent.

As the consequences of the lapse of time are substantial, particularly on appeal where it confers the force of res judicata on the contested judgment, it would be unwise to navigate these complex procedural waters alone. Our firm can help you develop a strategy tailored to your situation.

Sources

• Articles 386 to 393 of the Code of Civil Procedure
• Decree no. 2017-892 of 6 May 2017
• Civ. 2e, 28 June 2012, no. 11-17.873
• Civ. 2e, 23 Oct. 1974, no. 73-12.960
• Civ. 2e, 15 Feb 1995, no. 93-13.960
• Civ. 2e, Jan. 11, 1995, no. 92-13.102
• Civ. 2e, 8 Dec. 2005, no. 03-19.947
• Civ. 2e, 18 Apr. 2019, no. 17-21.189
• Civ. 2e, 16 Dec. 2016, no. 15-27.917
• Civ. 2e, 19 Nov. 2009, no. 08-16.698
• VEYRE Liza, "Péremption d'instance", Répertoire de procédure civile, Dalloz, February 2020