Conditions under which proceedings lapse: the three-step test

You think your case is progressing normally before the court... and suddenly your opponent invokes the lapse of proceedings. This radical procedural sanction extinguishes the proceedings in progress because of prolonged inactivity. How do you know whether your proceedings are likely to be affected by this sanction, which can wipe out two years of waiting?

The trio fatal to the survival of your procedure

Lapse of proceedings rests on three pillars. Article 386 of the Code of Civil Procedure (CPC) lays down this simple but formidable rule: "The proceedings lapse if neither party takes any action for two years.

These three conditions are cumulative:

• The existence of a body
• Lack of due diligence on the part of the parties
• The end of a two-year period

Let's look at them in detail.

The existence of a body: scope of application

One body, no more, no less

Limitation periods apply only to proceedings constituting an action. According to case law, an action is "a series of procedural acts from the initiation of legal proceedings through to judgment"..

Some procedures do not fall into this category:

• As the Court of Cassation pointed out (Civ. 2e, 24 March 2005)
• Collective proceedings as a whole (Com. 10 Jan. 2006)

However, the procedure applies in all civil courts, including :

• The enforcement judge
• Appeal courts
• The Court of Cassation (articles 1009-2 and 1009-3 of the CPC)

It even applies to cases involving public policy, as confirmed by the Court of Cassation (Com. 21 Nov. 1995).

Exceptions: when the expiry date does not apply

The statute of limitations does not apply when the proceedings are beyond the control of the parties:

1. In fee disputes (Civ. 2e, 16 Oct. 2003)
2. Verification of claims in insolvency proceedings (Com. 19 March 2002)
3. In arbitration proceedings governed by conventional time limits
4. After a mixed judgment where the final and interlocutory heads are indivisible

Failure to take due care: proof of inactivity

When the parties must act (or not)

Peremption can only be established if the parties were required to take due care. Case law identifies periods when no diligence is expected:

• After the oral hearing has been set (Civ. 2e, 16 Dec. 2016)
• After the close of debates
• Between a judgment of lack of jurisdiction and the registry's invitation to continue the proceedings (Civ. 2e, 15 Jan. 2009)

Note: case law has long held that if no hearing has been set, the parties must request one to avoid the proceedings being time-barred.

Identifying interruptive measures

Not every procedural activity constitutes diligence within the meaning of article 386 of the CPC. To qualify as diligence, an act must :

1. From a party (or its representative)
2. Be likely to move the case towards a solution

The Court of Cassation strictly controls this qualification. Diligence does not include :

• A change of lawyer
• Settlement talks
• A request for joinder of proceedings
• Letters exchanged between lawyers with no procedural follow-up

However, the following are considered as due diligence :

• Incorporation of a lawyer (Civ. 2e, 22 Feb 2007)
• A writ of resumption of proceedings
• A request for the setting of a hearing
• Conclusions providing new information

In the context of an appraisal, the situation is more nuanced:

• The filing of the report by the expert is not due diligence
• On the other hand, correspondence sent to the judge in order to hasten the expert's opinion is admissible (Civ. 2e, 26 Feb. 1992).

Expiry of the two-year period: calculation rules

The starting point of the period

The limitation period begins to run as soon as the proceedings are instituted. In practice :

• In the case of a summons, the date of the summons.
• After each diligence, a new period of two years runs

In certain special cases :

• After cassation: the time limit runs from the date of the judgment of cassation (Civ. 2e, 6 March 1991)
• In the event of removal for non-performance: from notification of the decision ordering removal (art. 524 para. 7 of the CPC).

Causes of interruption of the time limit

The expiry period can be interrupted by :

1. Performing due diligence
2. Interruption of the proceedings (death of a party, termination of the lawyer's appointment, etc.)
3. Stay of proceedings (art. 392 para. 2 of the CPC)
4. Applying for legal aid (Civ. 2e, 19 Nov. 2009)

An essential point: striking off the list for lack of diligence and removal from the list do not interrupt the time limit. The time limit continues to run during an investigation, unless the judge orders a stay of proceedings.

The March 2024 jurisprudential reversal: a decisive turning point

The Court of Cassation made a major about-turn in four rulings dated 7 March 2024 (no. 21-19.475, 21-19.761, 21-20.719 and 21-23.230). The rule is now clear:

"When, in accordance with the provisions of articles 908, 909 and 910-4 of the Code of Civil Procedure, the parties have fulfilled all the obligations incumbent upon them within the time allowed, without having anything further to add in support of their respective claims, they no longer have any useful diligence to carry out with a view to advancing the case. Management of the proceedings then passes from them to the Conseiller de la Mise en Prejudice.

This solution is revolutionary. Once all the procedural formalities have been completed, the time bar will no longer run against the parties, unless the Pre-Trial Judge sets a timetable or orders them to take particular care.

This reversal puts an end to the much-criticised case law that obliged the parties to regularly request a hearing, even when the delay was attributable to court congestion.

How can I avoid proceedings becoming time-barred?

There are a few things you can do to avoid this penalty:

1. Keep a rigorous schedule of current procedures
2. Identify the phases where due diligence is required
3. Never wait until the two-year deadline to take action
4. If in doubt, ask for a hearing to be set or take a procedural step
5. If a stay of proceedings is granted, monitor the occurrence of the expected event

Managing expiry dates requires constant vigilance. A law firm with experience in civil procedure will be able to manage these deadlines and take the necessary steps at the right time.

Is there a risk that your case may be time-barred? Do not hesitate to contact us for a detailed analysis of your procedural situation. Our firm will check whether the three conditions for the lapse of time have been met and will propose the necessary steps to preserve your rights.

Sources

• Articles 386 to 393 of the Code of Civil Procedure
• Court of Cassation, 2nd Civil Division, 7 March 2024, no. 21-19.475, 21-19.761, 21-20.719 and 21-23.230
• Court of Cassation, 2nd Civil Chamber, 16 December 2016, no. 15-26.083
• Court of Cassation, 2nd Civil Division, 15 January 2009, No. 07-22.074
• Court of Cassation, Commerce, 10 January 2006, no. 03-14.923
• Court of Cassation, 2nd Civil Division, 24 March 2005, No. 03-16.312
• Court of Cassation, 2nd Civil Division, 26 February 1992, No. 90-20.244