Lapse of documents initiating proceedings: pitfalls and consequences

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Filing a document initiating proceedings entails procedural risks that are sometimes overlooked. One of these risks is the risk of a document lapsing, a formidable penalty for a negligent litigant. This 'death' of an initially valid legal document can occur as a result of specific rules that all litigants should be aware of.

What is nullity?

Lapse sanctions an act which, although validly formed, loses an element essential to its validity after it has been formed. In procedure, it often appears as a sanction for the inactivity of one or both parties.

According to Pierre CALLÉ, Professor at the University of Paris-Saclay, lapsing a contract is "one of the many instruments used to combat the harmful effects of the parties' negligence, or even their unwillingness to comply with the obligations imposed by the legislator" (Répertoire de procédure civile, July 2024).

Lapse of the writ of summons before the court

The first pitfall for plaintiffs before the court is failure to provide the court registry with a copy of the summons.

Article 754 of the Code of Civil Procedure requires this to be done at least fifteen days before the date of the hearing. Failing this, the summons lapses. This rule is intended to put an end to "all-purpose summonses", the practice of issuing summonses without actually bringing the case before the court.

The time limit may be reduced in urgent cases, with the authorisation of the judge (article 755, paragraph 1). In the case of fixed-date proceedings, delivery must be made before the date set for the hearing (article 843).

This trap also affects tax summonses. The Court of Cassation has confirmed this on several occasions (Com. 21 October 1980, no. 79-13.081).

Lapse and specialised courts

Before the Commercial Court

Article 857 of the Code of Civil Procedure imposes a similar rule: a copy of the summons must be delivered to the court registry no later than eight days before the hearing.

Special feature: lapsing is established by order of the chairman, the judge hearing the case or, failing that, at the request of a party.

At industrial tribunals: beware of failure to appear

A claimant who fails to appear before the conciliation and referral office may also be declared null and void (article R. 1454-12 of the French Labour Code).

If the plaintiff fails to appear without a legitimate reason, the conciliation board may declare the application and summons null and void if the defendant does not seek a judgment on the merits.

Failure to appear in person is no longer necessarily fatal since the rules on representation have been made more flexible. A party is considered to be appearing if it is represented by a lawyer or by any of the agents mentioned in article L. 1453-1-A of the French Labour Code.

Even more severe is the fact that failure to appear before the adjudication board also results in the claim lapsing, pursuant to article 468 of the Code of Civil Procedure (Soc. 19 February 1992, no. 89-44.145).

Invalidity of the documents initiating the appeal

On appeal, there are several grounds for the appellant's appeal to lapse:

1. If the letter notifying the statement of appeal is returned to the court registry or if the respondent has not instructed a lawyer within one month, the appellant must serve his statement of appeal. If service is not made within one month of the registry's notification, the statement of appeal lapses (article 902 CPC).
2. The appellant must submit his submissions to the court registry within three months of the statement of appeal and notify them to the parties' lawyers (articles 908 and 911 CPC). Failure to do so will result in the appeal being declared null and void.
3. In the summary proceedings, these time limits are reduced. Article 906-1 (formerly 905-1) requires the statement of appeal to be served within twenty days of receipt of the notice of determination.

In 2021, the Social Division of the Court of Cassation ruled that this lapse "does not constitute a sanction disproportionate to the aim pursued" (Soc. 8 December 2021, no. 19-22.810).

Dramatic consequences

The most formidable sanction of nullity is its retroactive effect. An act that has lapsed is "reduced to nothing in its very principle", according to Roger Perrot.

In 1987, the plenary session of the Court of Cassation ruled that a lapsed writ of summons never interrupted the limitation period (Cass., plenary session, 3 April 1987, no. 86-11.536). This solution is logical: to accept the opposite would allow a plaintiff to extend the limitation periods indefinitely by issuing summonses at regular intervals.

A lapse can thus render definitive inadmissibility of a time-barred action. Once the limitation period has elapsed during the proceedings that have lapsed, no new action is possible.

In addition, article 385 of the Code of Civil Procedure states that if the summons lapses, the proceedings are extinguished, and although it is theoretically possible to bring new proceedings, this is only possible if the action is not time-barred.

Only a statement of lapse can sometimes save the day. Article 468 of the Code of Civil Procedure allows a defaulting claimant to inform the court clerk, within a period of fifteen days, of the legitimate reason that he or she was unable to invoke in time.

But beware: the Cour de cassation interprets this concept strictly. Neither counsel's geographical remoteness (Civ. 2e, 8 February 2024, no. 21-25.928) nor failure to receive opposing submissions (Civ. 2e, 28 June 2012, no. 11-21.051) constitute legitimate reasons.

Careful management of deadlines and procedural formalities is therefore crucial. Even the smallest slip-up can wipe out years of proceedings.

Our law firm rigorously monitors these critical deadlines to protect your rights. Don't hesitate to contact us before starting proceedings or to secure an ongoing case.

Sources

• Code of Civil Procedure, articles 385, 406, 407, 468, 478, 754, 755, 843, 857, 902, 908, 911, 913-5 (formerly 914)
• French Labour Code, articles L. 1453-1-A, R. 1454-12, R. 1454-21
• P. CALLÉ, "Caducité", Répertoire de procédure civile, Dalloz, July 2024
• Cass. ass. plenary, 3 April 1987, n° 86-11.536, Bull. civ., n° 2
• Com. 21 October 1980, no. 79-13.081, Bull. civ. IV, no. 345
• Soc. 19 February 1992, no. 89-44.145, Bull. civ. V, no. 102
• Soc. 8 December 2021, no. 19-22.810
• Civ. 2e, 8 February 2024, no. 21-25.928
• Civ. 2e, 28 June 2012, no. 11-21.051, Bull. civ. II, no. 125

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