Challenging a motion order: strategies and remedies

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In the French procedural arsenal, order on request is a formidable weapon. This non-adversarial procedure makes it possible to quickly obtain a court decision without the other party being informed. The price of this efficiency is a specific dispute system that you need to master to defend your rights.

The order on request and its special regime

Article 493 of the Code of Civil Procedure defines an ordonnance sur requête as "a provisional decision rendered in a non-adversarial manner in the presence of the parties". cases where the claimant is entitled not to call an opposing party ". This procedure derogates from the fundamental principle of adversarial proceedings. On the other hand, the legislator has provided for appropriate remedies.

The unsuccessful appellant's appeal: a restrictive procedure

If the application is rejected, article 496 paragraph 1 of the Code of Civil Procedure provides that the applicant may lodge an appeal. This option is reserved exclusively for unsuccessful applicants.

The time limit for appeal is short: fifteen days from the date of the order. Case law has specified that this time limit runs from the date of delivery of the minutes (Civ. 2e, 16 July 1992, no. 90-21.922, Bull. civ. II, no. 212).

The appeal is lodged, investigated and judged in accordance with the rules applicable to non-contentious matters. It must be lodged with the registry of the court that handed down the decision and not directly with the Court of Appeal. This particular procedural requirement must not be overlooked, otherwise the appeal will be inadmissible.

Retraction proceedings: an original mechanism

When the order grants the request, the means of contesting the decision open to third parties is the interim injunction (référé-rétractation), a mechanism provided for by article 496 paragraph 2 of the Code of Civil Procedure.

This mechanism allows any person who feels aggrieved by the order to "refer" the matter to the judge who made the order. This is not a traditional appeal, but a review of the case by the same judge.

The application is not subject to any time limit, which is a considerable advantage. It may even be made after the court hearing the case has already been seised (article 497 CPC), as confirmed by case law (Civ. 2e, 6 January 1983, Gaz. Pal. 1983. Pan. 177).

Controversial legal nature

The legal nature of the interim injunction is the subject of debate. The Court of Cassation has ruled that it "does not constitute a means of appeal but is part of the judge's necessary respect for the principle of contradiction" (Civ. 1st, 13 July 2005, no. 05-10.519, Bull. civ. I, no. 334).

This position, which has been criticised by some authors, reveals the primary function of the mechanism: to restore the adversarial process that was temporarily sidelined during the initial proceedings. The interim injunction is a procedural corrective.

Presentation and procedure

There are a number of rules that must be observed if you are to challenge an order on application effectively:

1. The application must be made to the judge who made the order, interpreted as the judge exercising the function of motions judge at the time of the application for retraction, regardless of whether this is a different individual (Civ. 2e, 11 May 2006, no. 05-16.678, Bull. civ. II, no. 127).
2. The request must be made by writ of summons and not by petition (Civ. 2e, 7 January 2010, no. 08-16.486).
3. The applicant must have an interest in bringing the action, which presupposes that the order adversely affects him or her.

It should be noted that, unlike the traditional summary procedure, it is not necessary to demonstrate urgency or the absence of a serious challenge. The judge has the same powers as during the initial examination of the application.

The role of the retraction judge

The retraction judge re-examines the case in the light of the adversarial process. His role is precisely defined by case law.

He must first check that the initial procedure was in order. If any irregularities are found (failure to state reasons, failure to submit documents), he must revoke the order without further investigation (Civ. 2e, 30 January 2003, no. 01-01.128, Bull. civ. II, no. 25).

The judge may only rule within the limits of the subject matter of the initial application. It cannot order a new measure (Civ. 2e, 20 February 1991, no. 89-13.954, Bull. civ. II, no. 61).

In practice, the judge can:

• Reject the application and uphold the order
• Retract the entire prescription
• Partial amendment of the ordinance

Recent case law and developments

Recent case law has provided a number of important clarifications:

The Court of Cassation has clarified that the judge must take into account the information brought to his attention during the adversarial debate, including facts that occurred after the order (Civ. 2e, 2 October 2001, no. 99-12.382).

In 2018, it specified that "an application to release the sequestration of documents seized by a bailiff following an investigative measure falls within the scope of litigation relating to the enforcement of such a measure, so that the judge hearing the withdrawal has no jurisdiction to hear it" (Civ. 2e, 27 September 2018, no. 17-20.127).

More recently, it recalled that "the sole purpose of proceedings for the revocation of an order on petition is to submit to the examination of an adversarial debate the measures initially ordered on the initiative of a party in the absence of its adversary" (Civ. 2e, 19 March 2020, no. 19-11.323).

As for evidentiary orders based on article 145 of the Code of Civil Procedure(Civ. 2e, 7 July 2016, no. 15-21.579).

Challenging an order on application requires a well thought-out strategy. Depending on whether you are a dissatisfied applicant or an aggrieved third party, the remedies available to you will differ. The time limits, formalities and powers of the judge also vary. Personalised legal advice, particularly on debt recovery and defence against precautionary measuresis often a determining factor. Don't hesitate to contact us for an analysis of your situation.

Sources

• Code of civil procedure, articles 493 to 498
• Civ. 2e, 16 July 1992, no. 90-21.922, Bull. civ. II, no. 212
• Civ. 1st, 13 July 2005, no. 05-10.519, Bull. civ. I, no. 334
• Civ. 2e, 11 May 2006, no. 05-16.678, Bull. civ. II, no. 127
• Civ. 2e, 30 January 2003, no. 01-01.128, Bull. civ. II, no. 25
• Civ. 2nd, 19 March 2020, no. 19-11.323
• Civ. 2e, 7 July 2016, no. 15-21.579
• Civ. 2e, 27 September 2018, n°17-20.127, FS-P+B

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