The raising of a defence can determine the outcome of a trial. Whether it is a defence on the merits, a plea in bar or a procedural objection, its effects vary considerably. The lawyer who masters these effects has a decisive strategic advantage. Let's look at the consequences of each plea on the proceedings and beyond.
1. The content of the decision
Damages for delaying tactics
Late and dilatory use of a defence may result in an order for damages. Articles 118 and 123 of the Code of Civil Procedure provide for this sanction in respect of objections to nullity on grounds of substantive defect and in respect of pleas of inadmissibility.
In a judgment of 27 February 2003, the Court of Cassation upheld an order for damages for late use of a procedural objection (Civ. 2e, 27 Feb. 2003, no. 01-11.975, Bull. civ. II, no. 44).
This sanction does not apply to a defence on the merits submitted late (article 72 of the CPC). There is, however, a difference in the case of appeals, where article 910-4 of the CPC now requires a "concentration" of pleas.
Whether or not to rule on the merits
In principle, a judge who upholds an objection or plea of inadmissibility cannot rule on the merits of the case. In a judgment of 26 February 1992, the 2nd Civil Division of the Court of Cassation held that a court is acting ultra vires when it declares a claim inadmissible and dismisses it on the merits (Civ. 2e, 26 Feb 1992, no. 90-18.308, Bull. civ. II, no. 67).
There are a few adaptations to this prohibition. If the court upholds a dilatory plea, it remains seized of the merits. Similarly, the court is not completely relieved of jurisdiction - it may rule on substantive issues outside the scope of the plea in bar, as the Cour de cassation has stated (Civ. 1re, 28 Jan. 1997, no. 94-19.747, Bull. civ. I, no. 35).
2. The scope of the decision
Temporary or permanent effects
The received wisdom that defences on the merits and pleas of inadmissibility have a definitive effect, unlike objections which merely defer consideration of the dispute, needs to be qualified.
A defence on the merits may have only a provisional effect, as in the case of a suspensive term where the claim is rejected only as it stands. Similarly, certain grounds for dismissal may only have a temporary effect:
- The initially absent interest to act may appear
- A premature application may become admissible
- An inadmissible incidental claim may be the subject of a new trial
These situations are referred to in the literature as fins de non-recevoir "en l'état" (RTD civ. 2019. 181, spec. 184, obs. Cayrol).
Impact on interruption of prescription and foreclosure
The reform of the statute of limitations by the Act of 17 June 2008 changed the effect of defences on the interruption of the statute of limitations and the foreclosure period.
Article 2241, paragraph 2, of the Civil Code now maintains the interruptive effect in the event that the referral is set aside for a procedural defect, whether a defect of form or of substance (Civ. 3e, 11 March 2015, no. 14-15.198, Bull. civ. III, no. 31).
On the other hand, the Court of Cassation has ruled that the interruption is "null and void" (Civ. 2e, 1 June 2017, no. 16-15.568, Bull. civ. II, no. 112), in accordance with article 2243 of the Civil Code.
Authority of pre-trial orders
The pre-trial judge's orders ruling on procedural objections have the force of res judicata, whether or not they put an end to the proceedings (Civ. 2e, 9 Jan. 2020, no. 18-21.997, Bull. civ., p. 210).
This solution, now set out in article 794 of the CPC, puts an end to previous case law which limited this authority to orders terminating proceedings.
The recent decree no. 2024-673 of 3 July 2024, known as "Magicobus I", strengthened the powers of the Pre-Trial Judge. He may now refer any objection to the bench for consideration, but only "at the end of the hearing" (C. pr. civ., art. 789, new para. 9).
3. Appeals against the decision
Rules governing appeals depending on the nature of the plea
Remedies vary according to the nature of the defence:
- For the defence on the merits: the judgment may be appealed immediately (art. 544 CPC) or on appeal (art. 606 CPC).
- With regard to pleas of inadmissibility and objections: in principle, an appeal is only possible with the judgment on the merits.
There are significant exceptions to this rule. Article 544, paragraph 2 of the CPC allows an immediate appeal when the decision puts an end to the proceedings.
Immediate appeal: conditions and exceptions
Special schemes provide for immediate unconditional recourse:
- Article 272 CPC for expert decisions
- Article 380 CPC for judgments staying proceedings
- Article 795 CPC for JME orders
- Article 916 CPC for appeals against CME orders
The "Magicobus I" decree restricted immediate appeal to orders of the JME "ruling on a procedural objection, a plea in bar or an incident of proceedings, [which] put an end to the proceedings" (C. pr. civ., new art. 795, para. 6).
Simplification of the system of objections to jurisdiction
Appealing against the judgment of a court of appeal ruling on jurisdiction used to be subject to complex casuistry. Decree no. 2014-1338 of 6 November 2014 simplified this regime by introducing article 607-1 of the CPC, which allows an appeal against "a judgment by which the court of appeal rules on jurisdiction without ruling on the merits".
This simplification put an end to the case law distinguishing between cases brought before the court by way of challenge or appeal, and according to the nature of the court whose jurisdiction was being challenged.
When dealing with incompetence, the lawyer must be particularly vigilant about time limits and the choice of the appropriate legal remedy.
Lawyers who select the right tool from their defence toolbox must anticipate its effects. Beyond the admissibility of the defence, a whole strategy is unfolded through its procedural consequences.
Are you facing a complex situation where an opponent has raised a defence? A litigation specialist will be able to assess the potential impact on your case and develop the best strategy.
Sources
- Code of Civil Procedure, articles 72, 118, 123, 272, 380, 544, 606, 607-1, 789, 795, 910-4, 916
- Civil Code, articles 2241, 2243
- Civ. 2e, 27 Feb. 2003, no. 01-11.975, Bull. civ. II, no. 44
- Civ. 2e, 26 Feb. 1992, no. 90-18.308, Bull. civ. II, no. 67
- Civ. 1st, 28 Jan. 1997, no. 94-19.747, Bull. civ. I, no. 35
- Civ. 3e, 11 March 2015, no. 14-15.198, Bull. civ. III, no. 31
- Civ. 2e, 1st June 2017, no. 16-15.568, Bull. civ. II, no. 112
- Civ. 2e, 9 Jan. 2020, no. 18-21.997, Bull. civ. p. 210
- RTD civ. 2019. 181, spec. 184, obs. Cayrol
- Decree no. 2014-1338 of 6 November 2014
- Decree no. 2024-673 of 3 July 2024 known as "Magicobus I".
- I. Pétel-Teyssié, Defences, objections, pleas of inadmissibilityRépertoire de procédure civile, Dalloz, November 2023
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