A trial that drags on for too long, parties who forget to move it forward, and suddenly the penalty falls: the lapse of proceedings. This mechanism, provided for in the Code of Civil Procedure (CPC), puts an end to proceedings that have been abandoned for two years. Far from being a mere formality, the effects of the lapse of proceedings are formidable: annulment of documents, loss of rights, and assumption of all costs. Understanding how it works, and above all the concept of interruptive diligence that makes it possible to avoid it, is a must for any litigant wishing to preserve his or her rights.
The key concept: definition and nature of diligences interrupting the expiry date
At the heart of the peremptory mechanism is the notion of interruptive diligence. This is the act by which a party shows its willingness to continue the proceedings and move them towards a conclusion. Without regular interruptive diligence, the two-year time limit runs inexorably, leading to the extinction of the proceedings. Recent case law from the Cour de cassation (French Supreme Court) has considerably changed the way this concept is assessed, shifting the focus from the judge's action to the responsibility of each party.
What is diligence within the meaning of Article 386 of the Code of Civil Procedure?
Diligence, within the meaning of article 386 of the Code of Civil Procedure (CPC), is any act that significantly advances the proceedings. It embodies the procedural impetus that the parties must give to the proceedings in order to avoid the penalty of their inertia. It is not just any action. Diligence must be useful and likely to advance the dispute. The filing of pleadings, the communication of new documents, a request to set a hearing or a request for an expert opinion are all examples of interruptive steps that start a new two-year period.
The 2024 reversal: the end of due diligence and the judge's new assessment
Case law has long debated the nature of "useful" diligence. Was diligence required to make material progress in the case, or was the mere expression of the parties' wishes sufficient? In a number of rulings (Cass. 2e civ., 7 March 2024), the Second Civil Chamber of the Cour de cassation clarified its position by stating that when the parties have fulfilled all the procedural obligations incumbent on them, in particular the exchange of their pleadings and exhibits, the time limit ceases to run against them. In other words, if the case is ready to be heard, in particular after a closing order by the Pre-Trial Judge, and the ball is in the court's court (to set a date for oral argument, for example), litigants can no longer be blamed for the court's inaction. This new definition introduced by the high court protects diligent parties against the slowness of the judicial system.
Can a simple initiative interrupt the deadline?
The question arises as to whether an informal step, such as a simple letter from the lawyer to the court registry asking about the progress of the case, can constitute interrupting diligence. The case law of the Cour de cassation tends to consider that such an act, in order to qualify as interruptive diligence, must manifest an unequivocal desire to progress the case. A simple reminder letter could be deemed insufficient if it does not call for a concrete procedural act aimed at advancing a claim. However, a letter formally requesting that the case be set down for pleading is more likely to be recognised as valid interruptive diligence, as it clearly expresses the intention to bring the proceedings to an end. Prudence dictates, however, that formal pleadings should be preferred (or even an application to set the case down submitted electronically) to avoid any uncertainty.
Termination of proceedings and its direct consequences
The most direct and brutal effect of the lapse of time is the extinction of the proceedings. Under article 389 of the CPC, all procedural acts are retroactively annulled. The writ of summons, the pleadings, the expert reports ordered: everything disappears as if the proceedings had never taken place. The most serious consequence of this annihilation is the loss of the effect of interrupting the limitation period attached to the initial claim, as provided for in art. 2243 of the Civil Code. In theory, the legal action itself survives the expiry of the limitation period. However, if the limitation period for the right to sue has elapsed by the time the action is declared time-barred, the litigant loses his right once and for all. They will no longer be able to bring new proceedings, and any appeal to the Supreme Court against the decision finding that proceedings have lapsed would be doomed to failure on this point. This interaction between expiry and prescription is a real danger, particularly in the context of insolvency proceedings where deadlines are crucial.
The fate of court decisions and the cost of proceedings
The lapse of time annuls decisions that are not yet final. Thus, an order by the pre-trial judge granting an advance, even if provisionally enforced, will have to be challenged and the sums paid will have to be returned. The situation is more nuanced for so-called "mixed" judgments, which rule on part of the merits and order an investigative measure for the remainder. If the points decided are indivisible from those yet to be decided, the proceedings cannot be barred. If this is not the case, the proceedings may lapse only in respect of those aspects of the claim that have not yet been decided. As for costs, the rule is implacable. Under art. 393 of the CPC, the original claimant is liable for all the costs of the proceedings that have lapsed, including both costs and irreducible costs. The judge has no power of moderation and cannot apportion this burden, even if the inertia is shared by the other party.
Expiry and litigation incidents: interactions to master
The life of a lawsuit is often punctuated by incidents that can affect the course of the limitation period. It is essential to distinguish between interruption and suspension. Interruption, caused by an interrupting event, starts a new two-year period. Suspension, on the other hand, temporarily stops the clock ticking without erasing the period that has already elapsed. A stay of proceedings, for example, suspends the limitation period, which will start running again for the remaining time once the cause of the suspension has disappeared. Conversely, it should be noted that administrative removal of the case from the list, which sanctions a failure by the parties to act diligently, neither interrupts nor suspends the limitation period. It is a trap for the unwary litigant, who may wrongly believe that time has stopped. Similarly, the time limit should not be confused with lapsing, which sanctions the failure to complete a formality within a specific time limit (such as the lapsing of the summons for failure to bring the case before the court), or withdrawal, which is a voluntary abandonment of the proceedings.
Specific cases: limitation periods in specialised proceedings
While the principles of limitation apply to many procedures, their practical application varies greatly in certain specific legal contexts. Insolvency law, recovery by order for payment and the law of the exchange of money provide illuminating illustrations of these interactions.
In insolvency proceedings: increased vigilance for creditors
The opening of safeguard, reorganisation or judicial liquidation proceedings results in the suspension of individual lawsuits. A creditor who has brought an action for payment against his debtor will see his proceedings interrupted. Be careful, as this interruption can create a false sense of security. However, it is imperative that creditors declare their claims as liabilities in the collective proceedings within the legal time limits. If they fail to do so, their claim will be unenforceable against the proceedings. To obtain recognition of his rights, he will have to bring an action for relief from foreclosure, the success of which is far from guaranteed. The lapse of time may also play a role: if proceedings were in progress before the opening judgment, the creditor must take care to resume them after declaring his claim, once he has been invited to do so, to avoid the lapse of time being acquired, which would be a cause for inadmissibility of his claim.
Links with the injunction to pay procedure
The order for payment procedure is a rapid recovery tool, but its relationship with prescription and limitation periods is subtle. A common misconception is that simply filing an application for an order for payment interrupts the limitation period. This is not the case. Only service of the order for payment, once issued by the judge, has this interruptive effect. A creditor who files his application shortly before the expiry of the limitation period is therefore taking a considerable risk: if the court delays in ruling or rejects his application, his claim could be time-barred. In addition, the order itself lapses if it is not served within six months of its date, wiping out any interruptive effect.
Protest and bills of exchange: retaining foreign exchange remedies
In commercial law, failure to take due care is sanctioned by another form of forfeiture: the loss of rights of recourse. The holder of a commercial paper (bill of exchange, promissory note) that has not been paid on the due date must have it "protested", i.e. have the non-payment officially recorded by a court commissioner. This protest in the event of non-payment is a special procedure that is essential if you are to take action against the previous signatories to the bill (endorsers, guarantors). If the protest is not lodged within the time limit, the bearer forfeits all rights of recourse against the guarantors. Although distinct from the lapse of proceedings, this sanction illustrates the same fundamental principle: in procedure as in commercial law, inaction is paid for by the loss of a right.
Lapse of appeal procedures: a sanction with stronger effects
The effects of the lapse of time are particularly severe when it occurs on an appeal. Article 390 of the CPC provides that the lapse of time on appeal or opposition confers on the first instance judgment the authority of res judicata. This means that the decision initially contested becomes final and enforceable, without the possibility of lodging a further appeal. The penalty for the negligent appellant is therefore twofold: not only are the appeal proceedings extinguished, but the action itself is paralysed, the initial judgment having become unassailable. This rule applies even if the judgment had not been notified.
Preventive strategies and managing the risk of expiry
There is no strategy for "retaining" or reviving an instance once it has expired. The only viable approach is preventive. For the lawyer, legal adviser or litigant, managing the risk of lapsing requires rigorous discipline. It is imperative to keep a precise timetable of procedural deadlines and never leave a case without any interruptive diligence for a period approaching two years. Every action, even a simple request for electronic fixation, must be documented and retained. It must be understood that the risk is greatest in the waiting phases, particularly after the exchange of pleadings and before the setting of the oral hearing, a period when the direction of the proceedings no longer rests solely with the parties. A systematic and formal reminder to the registry of the judicial tribunal (formerly the tribunal de grande instance) or the court is the best insurance against the often irremediable consequences of the lapse of proceedings.
Lapse of proceedings is a severe penalty that can wipe out years of proceedings and result in the loss of a substantial right. If you are faced with a situation of procedural inertia or if you fear the consequences of a lengthening delay, it is essential to take action. Contact our team for an in-depth analysis of your situation and tailored advice.
Sources
- Code of Civil Procedure (CPC), articles 385 to 393
- Civil Code, article 2243
- Commercial code
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