The adversarial principle: the golden rule of a fair civil trial

Just imagine: you're summoned to court, but you don't know exactly what you're being accused of. Or worse, a decision is made against you without you having had a chance to present your arguments or respond to those of your opponent. Such a situation would not only be unfair, but also profoundly contrary to the very idea of justice. It is precisely to avoid this that a fundamental pillar of our civil procedure exists: the adversarial principle.

Often referred to as the "golden rule" or the "soul of the trial", this principle lies at the heart of the concept of a fair trial. Set out in articles 14 to 17 of the Code of Civil Procedure, it permeates the entire procedure and is binding on all those involved. The aim of this article is to take a closer look at this essential principle: what does it mean in practical terms for you as a party? What are your rights and duties? How is it applied in the absence of one of the parties? And what is the crucial role of the judge in guaranteeing it?

What is the adversarial principle?

Basically, the principle of adversarial proceedings is simple in its objective: it aims to ensure that each party has the opportunity to examine the arguments of fact and law and the evidence presented by its opponent, and to respond to them before the judge makes his decision. The aim is to ensure a fair and balanced debate, where everyone can put forward their point of view and discuss the elements that are opposed to them. This is a sine qua non if justice is to be dispensed in an informed and accepted manner.

This is not simply a technical principle; it is recognised as a fundamental right, having constitutional value in France and being protected by article 6 of the European Convention on Human Rights relating to the right to a fair trial. It guarantees what is known as "equality of arms": each party must be able to present its case under conditions that do not place it at a significant disadvantage compared with its opponent.

The adversarial process from the parties' point of view: rights and obligations

For you, as a litigant, the adversarial principle translates into a set of rights as well as specific obligations.

The right to be informed and to participate: "heard or called upon".

Article 14 of the Code of Civil Procedure lays down the basic rule: "No party may be judged without having been heard or called".. This means that you have a fundamental right to know that proceedings are being brought against you (or by you) and to have the opportunity to participate in them.

It is important to note the nuance: "heard or called" . The courts do not require you to take an active part in the debate if you do not wish to do so. If you have been properly informed of the existence of the trial and the date of the hearing (you have been "summoned"), but choose not to appear or defend yourself, the proceedings may continue without you. The adversarial principle is respected as long as the possibility to participate. It's up to you to seize this opportunity.

In practical terms, this right to be "summoned" is guaranteed by the rules governing the summons to appear in court. The document informing you of the proceedings (the summons from a court commissioner - formerly a bailiff - or the summons from the court registry following a petition) must reach you and clearly indicate what is required of you and when you must appear. This right also applies during the proceedings if new claims are made against you (for example, a counterclaim by your opponent). Failure to comply with these information rules may result in the nullity of the proceedings, as this is a rule of public policy.

The duty to lay one's cards on the table: mutual communication

The right to be heard is not just a right to receive information, it is also a right to be heard. duty to give. Article 15 of the Code of Civil Procedure requires the parties to "to make known to each other in good time the facts on which they rely in support of their claims, the evidence they adduce and the pleas in law they rely on, so that each of them is in a position to arrange for its own defence"..

In other words, you must communicate fairly with your opponent:

• Your factual arguments : The facts you will present to the judge.
• Your evidence: All the documents (certificates, photos, etc.) you intend to use.
• Your legal arguments : The legal rules on which you rely.

This communication must take place "in due course. What does this mean? Quite simply, you must communicate your evidence in sufficient time for your opponent to have the material time to examine it, prepare a response and organise it before the hearing or the close of the investigation. Communicating important documents or submissions on the eve of a hearing or just before the deadline set by the judge is likely to be considered late and unfair. The assessment of what constitutes "sufficient time" is a matter for the judge, who will take account of the circumstances of the case.

How can you prove that you have submitted your evidence? In written proceedings with a lawyer, the document disclosure form annexed to the pleadings plays a key role: it lists the documents communicated and gives rise to a presumption (unless it is difficult to prove otherwise) that the documents were communicated. In oral proceedings, if the communication of a document is not contested by the opposing party, it is often presumed to have been duly made.

In principle, this communication must be spontaneous (article 132). However, if your adversary does not provide you with the information he intends to use, you can ask the judge to enjoin to do so (article 133), possibly under penalty (article 134).

Managing absences: arrangements for adversarial proceedings

What happens if a party does not take part in the trial? Is the adversarial principle completely discarded? Not exactly. The Code of Civil Procedure provides for mechanisms to deal with these situations of absence, distinguishing between whether the absence was "organised" or the result of a failure to appear.

Procedures "without the knowledge" of the opponent

In very exceptional cases, the law allows a measure to be requested from the judge without the other party being informed in advance. Article 17 of the Code of Civil Procedure refers to these cases where "the law permits or necessity dictates that a measure be ordered without the knowledge of a party".. A typical example is order on request (article 493), used when the effect of surprise is essential (for example, to establish a situation before it disappears). The payment order procedure is also initially non-contradictory for reasons of efficiency.

In these cases, the infringement of the adversarial process is only temporary. Article 17 guarantees the party against whom the measure has been taken a "appropriate remedy to challenge the decision and, this time, initiate an adversarial debate. In the case of an order on application, this is the summary proceedings procedure (article 496); in the case of an order for payment, it is the opposition procedure. The adversarial procedure is therefore simply deferred.

Failure of a party to appear

A more common situation is where a party, although informed of the proceedings, does not appear at the hearing or does not appoint a lawyer where this is compulsory. This is known as failure to appear. The consequences and the way in which the adversarial process is handled differ depending on whether the plaintiff or defendant is involved.

• If the claimant does not appear (without just cause) : The defendant present has the choice (article 468). He may ask the judge to rule on the merits of the case despite the plaintiff's absence (the judgment will then be "contradictory"). The judge may also choose to postpone the case or, even of his own motion, declare the summons to appear to have lapsed (which puts an end to the proceedings, but the plaintiff may relaunch them). If the summons is declared null and void, the plaintiff may have it withdrawn if he can show a legitimate reason for absence within 15 days. The idea is that the claimant, being at the origin of the proceedings, was necessarily informed and his absence is presumed to be voluntary, but there is a way out if he is genuinely prevented from attending.
• If the defendant does not appear : The situation is more complex because the rights of the person who may not have been properly informed must be protected. The judgment given will not always be qualified in the same way (articles 473 and 474):
  • Judgment deemed to be contradictory : This is the case if the decision is subject to appeal OR if the defendant was summoned "in person" (i.e. it is certain that he received the document in person). In this case, the defendant is considered to have had a real opportunity to defend himself. The only way to appeal against this judgment will be by way of an appeal (if one is available).
  • Default judgment : This is the case only if the decision is NOT subject to appeal AND if the defendant has NOT been summoned in person. Here, there is the greatest doubt as to whether the defendant was actually informed, and the need to protect the adversarial process is the strongest. The specific remedy available is theopposition (article 571), which allows the case to be retried by the same court, this time in the presence of both parties.
• If there are several defendants and at least one of them fails to appear, the nature of the judgment (deemed to be contradictory or by default) applies to all the defendants in order to avoid contradictory decisions (article 474).

These rules on default aim to reconcile the efficiency of justice (the trial must be able to move forward) and the fundamental protection of the right to be heard.

The judge and the adversarial process: guarantor and subject

The judge plays a dual role with regard to the adversarial principle, as indicated in Article 16: he or she must "to make people observe and observe themselves this principle.

The judge, guarantor of compliance with the principle by the parties

The judge is not simply an observer of the exchanges between the parties; he must actively ensure that the debate is fair and adversarial. To do this, he may :

• Encouraging communication : Remind the parties of their obligations and order them to communicate their documents or submissions if they are slow to do so (articles 133-134).
• Penalties for non-compliance : Remove from the hearing submissions or exhibits that have not been communicated in "good time" (articles 135, 802). This is an important power for combating delaying tactics and ensuring equality of arms.

The judge, himself subject to the principle

This is a crucial aspect that has been reinforced since a decision by the Conseil d'Etat in 1979 and the rewriting of Article 16 in 1981: the judge, when taking initiatives that could influence the decision, must also respect the adversarial process.

Paragraph 3 of Article 16 is decisive here: the judge "may not base its decision on points of law that it has raised of its own motion without first inviting the parties to present their observations".. If the judge intends to raise a legal argument that the parties had not thought of, he must point it out to them and allow them to discuss it before using it in his judgment.

This obligation applies widely:

• Procedural arguments (lack of jurisdiction, inadmissibility, etc.).
• Substantive grounds (application of a different rule of substantive law).
• To the "adventitious" facts that he would draw from the file.
• The results of investigative measures (an expert report, even one that was not originally submitted to the adversarial process, may be used if it has been included in the debates and discussed by the parties).

But be careful, The case law still admits a few limits (sometimes criticised) to this obligation: it does not always apply when the judge merely qualifies facts not initially qualified by the parties, or when he raises a plea "in the cause" (i.e. implicitly contained in the initial debate - a notion that the European Court of Human Rights has nevertheless sanctioned). More surprisingly, the judge may sometimes raise a breach of the adversarial principle of his own motion without submitting the point for debate!

The adversarial principle is therefore the backbone of a fair civil trial. It guarantees that you will not be judged without having had the opportunity to hear and respond to the evidence against you. Failure to observe it, whether by your adversary or by the judge himself, can vitiate the proceedings and justify an appeal. If you feel that your rights have not been respected on this fundamental point, or if you want to ensure that your own disclosure obligations are respected in the course of proceedings, our firm is here to advise you and defend your interests. Please do not hesitate to contact us.

Sources

• Code of Civil Procedure: articles 14, 15, 16, 17, 132 to 135, 431, 443, 445, 468, 471 to 474, 493, 496, 571, 802, 1015.
• European Convention for the Protection of Human Rights and Fundamental Freedoms: article 6.
• Case law of the Conseil d'État (in particular CE, 12 October 1979, Gathering of New Lawyers in France).
• Case law of the Cour de cassation relating to the communication of documents, expert appraisals and the judge's initiatives.