When a commercial dispute arises and attempts at amicable resolution have failed, the writ of summons is often the first formal step in legal proceedings. This fundamental document largely determines the chances of success of your action. A poorly drafted or incomplete writ of summons can compromise your case even before the hearing. This article details the essential aspects of the summons to appear before the Commercial Court and guides you through the crucial stages to get your proceedings off to a good start.
What is a summons and what is its role?
Definition: the document initiating proceedings par excellence
The writ of summons is the procedural document by which a plaintiff (the claimant) officially informs a defendant that legal proceedings have been brought against him before the commercial court. It is a formal document, issued by a bailiff, which marks the starting point of the legal proceedings.
Unlike a simple formal notice or letter from a lawyer, a writ of summons is legally binding. It obliges the defendant to appear before the court on a specific date and informs him of the claims made against him.
Informing the defendant and taking the case to court
The summons fulfils two main functions. Firstly, it ensures that the defendant is informed of the existence and content of the dispute, enabling him to prepare his defence in accordance with the adversarial principle. Secondly, it is the usual way of bringing a case before the Commercial Court.
Contrary to popular belief, simply serving the summons on the defendant is not enough to actually bring the case before the court. As we will see below, an additional stage, called "placement" or "enrolment", is necessary for the court to be validly seised.
Mandatory information in the writ of summons: beware of invalidity
Terms common to all bailiff's documents
All bailiff's documents, including summonses, must contain certain information required by article 55 of the Code of Civil Procedure. These include:
- The date of the document (day, month and year)
- The full name, address, nationality and profession of the judicial officer
- Applicant's full name, domicile or residence
- Indication of how the document is to be served
- The cost of the procedure
If this information is omitted, the summons may be declared null and void on the grounds of a formal defect, provided that a grievance can be proved.
Information specific to the summons (subject of the claim, pleas, documents, etc.)
In addition to the common information, the summons to appear before the Commercial Court must contain, on pain of nullity, the information specified in articles 54, 56 and 855 of the Code of Civil Procedure:
- Indication of the competent court (commercial court of [town])
- The precise subject matter of the claim, with a statement of claims
- The place, day and time of the hearing
- The surname, first name, occupation, place of residence, nationality, date and place of birth of the applicant
- For legal entities: form, name, registered office and legally representative body
- A statement of the grounds in fact and in law
- The list of documents on which the application is based (in an attached schedule)
- The procedure for appearing before the court and the consequences of failure to appear
Since Decree no. 2019-1333 of 11 December 2019, the summons must also mention the conditions under which the defendant may or must be assisted or represented, in accordance with the obligation to appoint a lawyer now applicable before the Commercial Court, with certain exceptions.
New information relating to attempts at amicable resolution
A major reform was introduced by Decree no. 2019-1333 of 11 December 2019, then supplemented by Decree no. 2020-1452 of 27 November 2020. The summons must now specify, when the prior attempt at amicable resolution is mandatory:
- Steps taken to resolve the dispute amicably
- Or justification of the legitimate reason why no attempt was made
This is a key point, as failure to mention it may result in the court declaring the application inadmissible.
Penalties for omissions or irregularities
Article 855 of the Code of Civil Procedure explicitly states that the summons must contain all the information mentioned, failing which it is null and void. However, according to article 114 of the same code, the summons may not be declared null and void on the grounds of a defect in form unless the person invoking it proves the prejudice caused to him by the irregularity.
In practice, the courts distinguish between formal nullities (which are generally subject to the demonstration of a grievance) and substantive nullities (which may be pronounced independently of any grievance). The failure to indicate the date of the hearing, for example, is considered by the courts to be a nullity on the grounds of a formal defect.
The content of the summons: clearly setting out the dispute
Statement of relevant facts
Drafting the statement of facts is a decisive stage. The events giving rise to the dispute must be presented in a clear, chronological and concise manner. Each fact mentioned must be relevant and directly related to the claims made.
A good statement of the facts:
- Precisely defines the scope of the dispute
- Contextualises the relationship between the parties
- Avoid superfluous or emotional details
- Is based on objective, verifiable data
This part must be drafted very carefully, as it will form the factual basis on which the court will decide the dispute.
Legal grounds: providing a legal basis for the claim
The legal arguments correspond to the legal arguments that support the plaintiff's claims. This section must set out the applicable legal rules (articles of the Commercial Code, the Civil Code, case law, etc.) and demonstrate how the facts described justify the claims made.
To be effective, legal arguments must :
- Identify the relevant legal bases
- Explain how these rules apply to the facts of this case
- Anticipate the defendant's potential counter-arguments
- Cite any favourable case law
Logically structuring the pleas in law makes it much easier for the judge to understand them and strengthens the case.
The system: formulating precise requests
The operative part concludes the summons. It sets out precisely and exhaustively what is being asked of the court. Each claim must be distinctly formulated and quantified in the case of sums of money.
The device may include :
- Order to pay specific sums
- Performance of specific obligations
- Cancellation or termination of contracts
- Ancillary claims (interest, article 700 of the CPC for irreducible costs)
- Requests for provisional enforcement
The wording of the operative part must be very precise, because the court can only rule on what is expressly requested of it, in accordance with the operative principle.
Service of the summons by a bailiff
The role of the bailiff
The service of summonses is the exclusive responsibility of bailiffs. These officers are the only ones authorised to officially deliver the document to the defendant, thereby guaranteeing that it has been received on a date certain and that the rights of the defence have been respected.
The bailiff :
- Checks the identity and address of the recipient
- Hand-deliver the summons or deposit it in accordance with the legal procedures
- Draws up a statement of service
- Provides proof that the formality has been completed
The use of a bailiff is an essential procedural guarantee for the claimant.
Terms of service
There are three main ways in which meaning is conveyed:
- Personal service the bailiff delivers the document directly to the addressee
- Service at home the document is given to a person present at the home
- The meaning of study After several unsuccessful attempts, the bailiff will leave a notice and keep a copy of the document at his office.
Specific rules apply to legal entities (delivery to the registered office) and to service abroad, which requires special procedures depending on the country concerned.
In all cases, the summons must be issued at least 15 days before the scheduled hearing date, in accordance with article 856 of the Code of Civil Procedure. This period may be reduced in urgent cases with the authorisation of the president of the court.
Placing (or registering) the summons at the court registry
The obligation to go to court after service
As mentioned above, service of the summons on the defendant is not sufficient to bring an action before the court. Article 857 of the Code of Civil Procedure states that "the matter shall be referred to the court, at the request of one or other of the parties, by delivering a copy of the summons to the clerk of the court".
This additional stage, known as "placement" or "enrolment", involves filing a copy of the summons with the court registry, usually accompanied by the minutes of service. It is only at this point that the court is actually seised of the dispute and the proceedings are commenced.
Placement deadlines and terms
The placement must be made no later than eight days before the hearing date indicated in the summons. This time limit is mandatory and failure to comply will invalidate the summons.
In practice, the investment can be made :
- By physical deposit at the court registry
- Electronically via the e-Greffe platform
- Through a lawyer
Since the introduction of the "digital court", this formality has been largely dematerialised, making it easier for lawyers for commercial disputes.
Penalty for failure to place: lapse of contract
Failure to comply with the eight-day placement period before the hearing will result in the writ lapsing. This radical sanction means that the document loses all legal value and the proceedings are deemed never to have been initiated.
The president of the court or the judge hearing the case may declare that the proceedings have lapsed on his or her own initiative, or at the request of one of the parties. If it is declared null and void, the plaintiff will have to restart the proceedings from the beginning, with a new writ of summons.
Jurisprudence has specified that this lapsing causes the summons to lose its effect of interrupting the limitation period. It is therefore essential to comply scrupulously with this time limit in order to preserve your rights.
The importance of having the summons drawn up by a lawyer
Although the legal representation before the commercial court is now compulsory for most disputes since the decree of 11 December 2019, certain exceptions remain, in particular for disputes not exceeding €10,000.
However, even in these exceptional cases, have a writ of summons drawn up by a lawyer offers considerable advantages:
- Precise definition of the procedural strategy appropriate to the dispute
- Accurate identification of the relevant legal bases
- Properly formulated requests to maximise chances of success
- Anticipating opposing arguments and complex legal issues
- Preventing risks of nullity or inadmissibility
The writ of summons forms the basis of all future proceedings. Its quality often determines the outcome of the dispute, well before the stages of the procedure that follow. A lawyer will be able to anticipate technical aspects such as the joinder of proceedings, severance or procedural incidents in order to build a coherent strategy from the outset. written phase of the procedure.
With so much at stake in your commercial dispute, don't let a poorly drafted summons compromise your chances of success. Our firm can help you draft this fundamental document and assist you at every stage of your proceedings before the Commercial Court. Contact us for an in-depth analysis of your case and the implementation of an effective procedural strategy.
Sources
- Code of Civil Procedure, articles 53 to 57, 353 to 354, 446-1 to 446-4, 643 to 650, 750 to 758, 853 to 871
- French Commercial Code, articles L. 721-1 to L. 723-31, R. 721-1 to R. 723-31
- Decree no. 2019-1333 of 11 December 2019 reforming civil procedure
- Decree no. 2020-1452 of 27 November 2020 containing various provisions relating in particular to civil procedure
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