Judicial time: not falling into the trap of procedural deadlines

In legal matters, time is not an abstract concept. It is governed by precise rules and imperative deadlines known as procedural deadlines. Ignoring or disregarding these deadlines means running the considerable risk of seeing your rights evaporate, sometimes permanently. An action not launched in time, a response not provided within the time limits, an appeal not made... and the door to justice may be closed, whatever the merits of your claim or the soundness of your arguments. It's a race against time, and you need to master the rules to avoid stumbling.

These time limits, which punctuate each stage of a civil trial, may be set by the law itself or by the judge responsible for organising the exchanges between the parties. Understanding how they work, how to calculate them and what the consequences of failure to comply are is therefore absolutely essential. This article aims to guide you through the intricacies of legal time limits, explain the role of the judge in managing procedural time and place particular emphasis on time limits in appeal proceedings, an area where maximum rigour is required.

Statutory deadlines: calculation rules and penalties

The law sets numerous time limits for carrying out certain procedural acts. The best known is undoubtedly the time limit for appealing a decision, but there are many others (for challenging an administrative decision, for taking action in warranty, etc.). Their calculation is governed by precise rules set out in the Code of Civil Procedure.

Counting: calculating deadlines

Calculating a time limit, or "computation", may seem straightforward, but there are a few subtleties, defined mainly in articles 640 to 642 of the Code of Civil Procedure.

• The starting point (Dies a quo) : The time limit begins to run from the date of the act, event or notification that triggers it (article 640). For example, the time limit for appealing a judgment begins on the day it is served (officially notified by a court commissioner).
• Calculation in days : When a deadline is expressed in days (for example, 15 days to respond), the day of the triggering event (the dies a quo) does not count. The period begins at midnight on the following day and expires at midnight on the last day (article 641). A 15-day period starting on a Monday therefore runs until the following Monday at midnight.
• Calculation in months or years : For these periods, the starting day counts implicitly. The period expires on the day of the last month (or year) which bears the same number as the starting day. For example, a one-month period starting on 15 March expires on 15 April at midnight. If the month of arrival does not have a corresponding day (for example, a one-month period starting on 31 January), the period expires on the last day of that month (28 or 29 February).
• Weekends and public holidays: This is an essential point. If the last day of the deadline falls on a Saturday, Sunday or public holiday (such as May 1st or July 14th), the deadline is automatically extended. extended until the next business day (article 642). However, this rule only applies if it is the last day concerned. A public holiday falling in the middle of the period is counted normally. But what happens if the last day falls on a Sunday? The deadline will not end at midnight on Sunday, but at midnight on Monday (unless that Monday is also a public holiday).

Mastering these rules is fundamental, because a single day's miscalculation can be fatal.

Geographical distance: an extension for some

Aware that distance can make access to justice more difficult, the legislator has provided for an increase in certain important time limits (appearance, appeal, opposition, cassation) for people living far from the court concerned.

• Articles 643 and 644 of the Code of Civil Procedure provide for an increase of :
  • One month for people who live in an overseas department or collectivity when they act or are challenged before a court in mainland France (and vice versa).
  • Two months for people living abroad.

These additional time limits are added to the basic time limit. For example, the one-month appeal period becomes three months for a person living abroad. Please note, however, that article 647 specifies that if a person who is domiciled abroad or in an overseas département receives notification of the document in person in mainland France, it does not benefit from this increase.

Penalties for delay: forfeiture, foreclosure, lapse of time

Failure to comply with a legal time limit for taking action is not mere negligence; it is a procedural offence that carries severe penalties.

• Loss of the right to sue (forfeiture/forclusion/irreceivability) : If you do not take the required action (for example, lodge an appeal) before the deadline expires, you are "foreclosed". Your action or appeal will be declared inadmissible. This is a "fin de non-recevoir" that the judge may, and often must (particularly in the case of time limits for appeals), raise ex officio, i.e. without your opponent even asking for it (article 125 of the Code of Civil Procedure). This is the most frequent and formidable sanction.
• Lapse : In some cases, it is the initial document that loses all value. For example, a writ of summons (the document that starts the proceedings) must be delivered to the court registry within a certain period of time after it has been issued to the other party. If this time limit is not respected, the summons becomes "null and void" (article 406): it no longer has any effect, as if it had never existed, and in particular has not interrupted the statute of limitations.
• Foreclosure relief: a very slim second chance : Article 540 of the Code of Civil Procedure offers a very limited possibility of being "relieved" of the time limit for lodging an appeal or opposition if a judgment has been handed down without your having appeared. To do this, you must apply to the president of the competent court within two months of actually becoming aware of the judgment (often via an enforcement measure) and prove that you did not become aware of the decision in time, or that you were absolutely unable to act, no fault of your own. The conditions are very strict and rarely met.

Time limits set by the court: organisation of the pre-trial procedure

In written proceedings, particularly before the Court of First Instance or the Court of Appeal, a magistrate is specifically appointed to organise exchanges between the parties before the hearing: this is the Pre-Trial Judge (JME) or the Pre-Trial Adviser (CME) in appeals. This judge plays a crucial role in ensuring that the proceedings are conducted in an efficient and adversarial manner.

The trial conductor: the Pre-Trial Judge/Counsellor

This magistrate is the true master of procedural time during the pre-trial phase. His main role, as defined in article 780 of the Code of Civil Procedure, is to ensure "the punctuality of the exchange of pleadings and the communication of documents". To this end, he has the power to set deadlines for the parties (generally represented by their lawyers) to complete these tasks.

Setting deadlines: two methods

The JME or the CME can use two approaches to set these time limits (article 781 of the Code of Civil Procedure):

1. Fixing "as you go along": This is the most traditional method. After each exchange (for example, submission of the plaintiff's pleadings), the judge sets a time limit for the opponent to respond. The judge may adjust the time limits depending on the complexity of the case and the (non-binding) advice of the lawyers.
2. The "procedural timetable" : Inspired by practical experience, this system is designed to be more predictable. The judge, after consulting the lawyers, can set a provisional timetable at the beginning or during the proceedings, indicating the deadlines for the exchange of pleadings, the closing date for the preliminary hearing (after which nothing more can be added), and sometimes even the date of the oral hearing. If this method is followed, it provides a better overview of the duration of the pre-trial phase.

What happens if the judge's deadlines are not met?

Unlike legal time limits, failure to comply with a time limit set by the JME/CME does not automatically result in the loss of the right to act. However, the magistrate can use sanctions to encourage the parties to comply with the timetable he has set:

• Closure of the hearing (Art. 800) : This is the most frequent and effective sanction. The judge may decide to "close" the hearing. After this date, except in very exceptional circumstances ("serious cause" revealed after the closure), no submissions or new exhibits may be filed. In practical terms, this means that if a party has not responded in time, it may no longer be able to do so, and the judge will rule on the basis of the information already exchanged. The judge may even declare a "partial" closure in respect of a single defaulting party.
• Deregistration (Art. 801) : If all the parties are inactive and do not meet the deadlines, the judge may decide to "strike off" the case. This means that the case is removed from the list of pending cases. It is not finished, but it is put on hold. The proceedings are suspended, but the limitation period (generally 2 years of total inactivity) continues to run. To reactivate the case, it will be necessary to show that the missing steps have been taken. This is a less radical sanction than closure, which is often used to give negligent parties a last chance.

Focus on appeal deadlines: a journey fraught with pitfalls

While time limits are important at first instance, they become absolutely critical on appeal. The appeal procedure with compulsory representation by a lawyer is marked by very strict deadlines, often referred to as "cut-off points", failure to comply with which results in automatic and severe penalties. The stated aim is to speed up the processing of cases on appeal, but this creates a veritable obstacle course for litigants and their lawyers.

Strict deadlines imposed on the parties

Articles 908, 909 and 910 of the Code of Civil Procedure set out the main time limits:

• For the appellant : It has a period of three months from the date of his own statement of appeal to file his initial submissions with the court registry. It is in this document that he must set out the reasons for his appeal and his claims.
• For the respondent (the party against whom the appeal is lodged) : It also has a period of three monthsbut this period runs from notification of the appellant's submissions, to file its own submissions in response. It is also within this period that the appellant may, if he wishes, lodge a "cross-appeal" (i.e. contest other aspects of the judgment) or a "provoked appeal" (i.e. implead another party).
• Subsequent exchanges : Other shorter time limits (generally two months, article 910) are provided for any replicas.
• Communication : At the same time as they are filed with the court registry, the pleadings and exhibits must be served on the lawyers of the other parties (generally via RPVA, article 906). If a party does not yet have a lawyer, the pleadings must be served by a court commissioner within a specific time limit (article 911).

Automatic and severe penalties

Failure to comply with these time limits has radical consequences, which are often raised ex officio by the Conseiller de la Mise en Prejudice or the Court:

• Appeal lapses (Art. 908) : If the appellant does not file his submissions within three months of his statement of appeal, his appeal becomes null and void. This means that the appeal is annulled, as if it had never existed. The first instance judgment then becomes final (unless the respondent had itself lodged a main appeal). This is the most serious sanction for the appellant.
• Inadmissibility of submissions (Art. 905-2, 909, 910) : If the respondent (or the appellant in the case of a reply) files its submissions out of time, they will be declared as follows inadmissible. The judge will not take into account the arguments and requests submitted late. The respondent then finds himself in a very difficult position to defend himself. The same applies to documents submitted in support of inadmissible submissions (article 906).

These sanctions are applied very strictly by the Courts of Appeal and the Cour de Cassation, which consider that the speed of justice and legal certainty require it.

Some specific situations that affect deadlines

There are a few exceptions:

• Legal aid : If a party applies for legal aid, the time limits for concluding the proceedings are suspended and do not start running again until the decision on legal aid or the appointment of the lawyer is made (article 43 of Decree no. 2020-1717).
• Deregistration for non-performance : If the respondent applies to have the case removed from the register because the appellant is not complying with the first instance judgment (where it is enforceable), the time limits for the respondent to conclude are suspended until the decision on removal from the register is taken (article 526).
• Distance : The increases in time limits for residents of overseas France or abroad (+1 or +2 months) also apply to time limits for appeals (article 911-2).

Procedural deadlines are an essential component of the right to a fair trial, but their complexity and rigour, particularly in appeals, make them a minefield for the unwary litigant. Missing a deadline can wipe out months or even years of effort and procedure. It is essential to identify them from the outset, calculate them accurately and anticipate them.

Faced with these challenges, the assistance of a lawyer is essential to ensure that your legal proceedings are secure, that deadlines are respected and that you develop an appropriate procedural strategy. If you are involved in legal proceedings or are considering doing so, and you are concerned about the issue of time limits, our firm will be happy to provide you with the necessary advice.

Sources

• Code of Civil Procedure (in particular articles 125, 406, 540, 640 to 644, 647, 780, 781, 800, 801, 906, 908, 909, 910, 911, 911-2)
• Decree no. 2020-1717 of 28 December 2020 implementing the law on legal aid