Failure to take procedural steps: risks and legal remedies

In civil procedure, appearing is not enough. The parties must perform certain acts within the allotted time. This obligation, which is distinct from mere presence, entails specific sanctions in the event of failure to comply. Mastery of these rules often determines the outcome of a trial.

Fundamental distinction in civil procedure

The Code of Civil Procedure makes a clear distinction between two types of default. Failure to appear refers to the physical absence of a party. Failure to perform acts refers to a party's failure to comply with procedural obligations even though it is present at the proceedings.

This second category replaces the former "failure to conclude". Article 2 of the Code of Civil Procedure sets out the principle: "It is the responsibility of the parties to complete the procedural documents in the required form and within the required time". Failure to comply with this rule entails graduated penalties.

The distinction is justified by the behaviour of the litigant. A party who appears but neglects his procedural obligations shows a form of disinterest in the proceedings. The severity of the sanctions reflects this attitude. The current rules, set out in sections 469 and 470 of the Code, apply to all courts.

These provisions concern various obligations: the filing of pleadings, the production of documents, responding to a request from the judge, and the payment of a deposit. Any act necessary for the proceedings to progress falls within this framework.

Failure of the claimant to perform the acts

The claimant initiates the proceedings. His procedural inertia therefore seems paradoxical. However, it can occur for a variety of reasons: dilatory strategy, loss of interest in the dispute, negligence.

Article 469 of the Code provides for three possible consequences:

1. An adversarial ruling on the merits. The judge rules on the basis of the evidence available. This solution is used when the defendant wants a decision, for example to obtain a definitive rejection of the opposing claims.
2. Lapse of the summons at the request of the defendant. This serious sanction annuls the initial claim and removes the effect of interrupting the limitation period. The court may grant the plaintiff additional time to rectify the situation. This extension is optional.
3. Removal of the case from the list, possible if both parties neglect their obligations. This administrative measure removes the case from the docket. It allows the case to be resumed at a later date once the missing steps have been completed.

The defendant has a strategic choice. He may oppose the judgment and request that it lapse. Alternatively, he may prefer to have the case struck out by refraining from taking any action himself.

Failure of the defendant to perform acts

The defendant sometimes fails to fulfil his procedural obligations. This inertia cannot block justice. Article 469, paragraph 1, allows the judge to rule by contradictory judgment with the elements provided by the plaintiff.

This judgment remains subject to the adversarial principle. The judge verifies the admissibility and merits of the claim. It examines the documents produced and the arguments put forward. This minimum protection guarantees the rights of the defaulting defendant.

In oral proceedings, the filing of written submissions does not replace an appearance in court. Case law remains firm on this point. Attendance at hearings is still required, barring legal exceptions (articles 446-1 and 847 of the Code).

The defendant may not rely on a failure to communicate documents if he does not appear. This strict rule applies even to documents produced during deliberations. Procedural failure thus diminishes the usual protection.

How do you remedy a lack of achievement?

Remedies vary depending on the penalty imposed.

If a case is struck out, article 383 of the Code allows it to be reinstated. The party must prove that the missing steps have been taken. This simple solution preserves the effects of the initial application.

Lapse presents more difficulties. It annuls the document initiating proceedings. A new procedure becomes necessary. In industrial tribunal proceedings, the rule that there must be only one set of proceedings (article R. 1452-6 of the Labour Code) limits the possibilities of resumption.

Preventive strategies do exist:

1. Keep a strict schedule of procedural obligations
2. Requesting extensions to deadlines in the event of difficulties
3. Appoint a lawyer to secure the procedure
4. Regularly check the progress of the project

Failure to comply with the time limits may result in the proceedings lapsing. This is a sanction for prolonged inactivity for two years (article 386 of the Code). It erases the proceedings but preserves the right of action.

Compliance with procedural obligations requires rigour and care. The right legal support can help you avoid these pitfalls. Our firm offers you personalised monitoring of your procedure to ensure that every stage is secure.

Sources

• Code of Civil Procedure, articles 2, 3, 383, 386, 469 and 470
• French Labour Code, article R. 1452-6
• Court of Cassation, 2nd Civil Division, 26 October 1994, No. 92-14.815
• Court of Cassation, 2nd Civil Division, 27 May 2021, No. 19-23.898