The limits of res judicata: when can a decision be challenged and when does it not apply?

In our previous articles, we established that the principle of res judicata is a powerful rule: a case that has been decided cannot be tried again (autorité de la chose jugée) and a decision becomes irrevocable, i.e. "final", once all appeals have been exhausted. This rule ensures stability and legal certainty. However, as is often the case in law, this principle is not an impenetrable wall. Exceptions exist, nuances apply, and not all court decisions have the same scope.

You may be wondering: are there situations in which a decision, even an apparently final one, can be reviewed? Are some decisions less 'strong' than others? How do decisions handed down by different types of court interact, for example between criminal and civil cases? This article explores the limits of res judicata, those cases where the intangibility of a decision is subject to exceptions or temperaments.

Not all decisions have the same authority

It is essential to understand that not all decisions handed down by a judge have the same force, or the same vocation to settle a dispute definitively. Some are, by their nature or purpose, limited in scope.

Interim rulings: inherently limited authority

Some decisions are described as "provisional" because they are taken as a matter of urgency or pending a decision on the merits of the case, without definitively settling the dispute. Their authority is therefore, by definition, limited.

• Interim order : This is a typical example. The interim relief judge intervenes quickly to order urgent measures that are not seriously disputed, or to prevent imminent damage, or to award a provisional payment. Article 488 of the Code of Civil Procedure is very clear: the summary proceedings order shall does not have the force of res judicata in the main proceedings. This means that the judge who is subsequently called upon to rule on the merits of the case (the judge hearing the main proceedings) is in no way bound by the decision of the interim relief judge. He may come to a completely opposite conclusion. Even if the interim order has become irrevocable (after all appeals against it have been exhausted), it retains its provisional nature in relation to the merits of the case. However, a word of caution: an interim order has a certain "provisional" authority. As long as the circumstances that justified it have not changed, you cannot ask the interim relief judge for the same measure again. New circumstances" must be invoked for him to agree to modify it.
• Order on request : Given without the adversary having been heard (non-adversarial procedure), often for urgent or protective measures (for example, authorising a protective seizure, appointing a bailiff to ascertain a fact), this decision is also provisional and has no authority in the main proceedings (article 493 of the Code of Civil Procedure). It may be modified or retracted by the judge who made it if an interested third party so requests.
• Decisions of the Juge (or Conseiller) de la Mise en État : This magistrate manages the investigation of the case before the court or the court of appeal. Most of his decisions (setting deadlines, ordering an expert opinion, awarding a provisional payment) do not have the force of principal decisions, according to article 775 of the Code of Civil Procedure. The judgment panel (the tribunal or the court) will be able to review these points. However, the law has strengthened the powers of this judge: when he rules on certain procedural exceptions (for example, the court's lack of jurisdiction) or on incidents that put an end to the proceedings (lapse of time, withdrawal), his decision a res judicata, even in the main proceedings. The same applies on appeal to certain decisions of the Conseiller de la mise en condition concerning the admissibility of the appeal or of the submissions (articles 914 and 916 of the Code of Civil Procedure). The distinction has therefore become more subtle.

Non-judgemental decisions: a control rather than a judgement?

The judge sometimes intervenes outside the scope of any dispute, simply because the law requires him or her to review certain acts, due to their nature or the status of the plaintiff (article 25 of the Code of Civil Procedure). These are known as non-contentious matters (examples: change of matrimonial property regime, adoption, certain guardianship decisions).

Traditionally, these decisions, which do not rule on a dispute, are not res judicata in the strict sense of the term. They can be modified if the circumstances that justified them change. However, the fact that they are subject to appeal and produce significant legal effects tends to give them a certain stability, close to the authority of res judicata, at least as long as the conditions under which they were issued remain valid. They are to be distinguished from "judicial contracts" where the judge merely ratifies an agreement between the parties without exercising any real control imposed by the law.

Judicial administration measures: internal organisation

Lastly, some of the judge's decisions are simply aimed at organising the internal workings of the courts or the material conduct of a trial (setting a hearing date, striking a case off the list for lack of diligence on the part of the parties, joining two cases, etc.). These "measures of judicial administration", according to article 537 of the Code of Civil Procedure, are not considered to be judgements in the strict sense. They therefore have no res judicata effect and, in principle, cannot be appealed.

Exceptional challenges to final decisions

Even when a decision has ruled on the merits of the case and has become irrevocable (no further appeals are possible), there are exceptional mechanisms for challenging it in very limited cases.

Extraordinary remedies: narrow doors

These remedies are only available in very specific circumstances and are designed to correct serious errors or flagrant injustices:

• The application for review : It is undoubtedly the best known, but also one of the most difficult to exercise. It allows an irrevocable decision to be challenged if it is discovered, after the judgment, whether it was obtained by fraud (one party deceived the judge), or based on documents, testimony or oaths that have since been recognised or declared false. The conditions set out in article 595 of the Code of Civil Procedure are very strict and the time limits are short (two months from the discovery of the grounds for review).
• Third party opposition : This remedy is not available to the parties to the judgment, but to a person who third who was neither a party nor represented in the proceedings, but whose rights have been adversely affected by the decision. This allows them to request that the decision be declared unenforceable against them, or even that it be retracted or reversed as far as they are concerned (article 582 of the Code of Civil Procedure). In principle, the time limit is long (30 years), unless the third party has been notified of the judgment.

Other even more specific remedies exist, such as appeals on the grounds of conflicting decisions (when two irrevocable decisions are irreconcilable) or revocation of a decision (to correct a procedural error made by the Cour de cassation itself). These mechanisms underline the fact that even irrevocability may give way in the face of higher imperatives of justice, but their exceptional nature guarantees the general stability of decisions.

The continuing importance of new facts

As we saw in the previous article, res judicata is based on the idea that the cause (the facts and the rules of law on which the claim is based) is the same. Consequently, if relevant developments occur after the decision or are discovered late through no fault of their own, they may justify further legal action.

This mechanism is crucial in many areas:

• In terms of bodily injury or property damageIn the event of a proven worsening of the victim's condition or of the damage after an initial judgment, it is possible to claim additional compensation.
• Visit FAMILY LAWthe children's situation or the parents' resources change. A significant change may justify an application to change the children's residence, visiting rights or the amount of child support, even after a final decision has been made.
• Generally speaking, any subsequent event that substantially alters the legal situation recognised by an initial judgment can potentially open the door to a new action.

Be careful, however: the facts must be genuinely new or discovered at a late stage, and not simply new evidence about old facts, nor legal arguments that should have been raised at the first trial (rule of concentration of pleas).

The influence between different decisions: the positive effect

Sometimes a court decision can have an influence on another case, even if it is not strictly identical. This is known aspositive impact res judicata: what was decided in the first case is taken for granted in the second. This mechanism is complex and its applications are limited and often debated.

The special case of the authority of criminal law over civil law

This is the best-known example, although it is declining. For a long time, the principle was that "the criminal holds the civil in check" and that what was judged by the criminal court was absolutely binding on the civil judge. The reason given was the supposed superiority of criminal justice (greater investigative resources, public policy issues).

Today, this principle is much more nuanced:

• Condition of irrevocability : The authority of the criminal law over the civil law only comes into play if the criminal decision has become final. irrevocable.
• Limitation to what is necessary and certain : Only the findings of the criminal court that were absolutely necessary to justify its decision (existence of the material facts constituting the offence, participation of the person prosecuted) are binding on the civil court. Superabundant, dubious or non-essential reasons do not have this authority.
• Frequent dissociation of faults: The recognition or non-recognition of a criminal offence no longer automatically entails the recognition or exclusion of a civil fault.
  • Since the law of 10 July 2000 (codified in article 4-1 of the Code of Criminal Procedure), the absence of unintentional criminal fault (for example, in a road accident) does not in any way prevent a civil court from finding that a person was civil negligence or recklessness involving the liability of the person acquitted under criminal law. The criteria are no longer the same.
  • Even for intentional mistakesDefinitions may differ. For example, the intentional fault required to exclude an insurer's cover (willingness to cause the damage as it occurred) is not identical to the culpable intent required for certain criminal offences (such as intentional violence). The civil judge therefore retains a margin of discretion.
• Civil action vs. public action : The authority attaches only to what has been decided on the public action (guilt or innocence). What the criminal court has decided in the civil action (compensation for loss) does not have this particular authority in relation to the civil court hearing the case subsequently.

To sum up, while an irrevocable criminal conviction establishing certain facts may still bind the civil court as to the existence of these facts, a criminal acquittal, especially in a non-intentional case, often leaves the civil court considerable freedom to assess the existence of a civil fault and award compensation.

The influence of civil or administrative/civil decisions

• Civil/Civil : Positive effect between two civil decisions is rarer and more controversial. It is sometimes admitted for preliminary questions (a question decided in a first trial that is necessary to resolve the second), but always subject to the identity of the parties and the limits linked to respect for the adversarial process. Article 79 of the Code of Civil Procedure provides an example: if the court, in order to determine its jurisdiction, has had to decide a substantive issue (e.g. classifying a contract), this classification is binding for the rest of the proceedings.
• Administrative/Civil : The decisions of the administrative judge annulling an administrative act (recours pour excès de pouvoir) have the force of law. erga omnesIn other words, they are binding on everyone, including civil courts. If a building permit is annulled by the administrative court, the civil judge can no longer consider it valid. On the other hand, rejection decisions by the administrative court generally do not have this absolute authority.

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While the principle of res judicata ensures essential stability, it is not a blind rule. Mechanisms exist to take account of the provisional nature of certain decisions, to correct exceptional errors, to incorporate new facts or to articulate decisions between different branches of law. Understanding these limits is as important as knowing the principle itself.

Navigating through the various court rulings and understanding their exact scope requires legal expertise. If a previous decision has an impact on your current situation, or if you are wondering about the possibilities of appeal or the effects of a judgement, contact our firm for a precise assessment.

Sources

• Code of Civil Procedure: in particular articles 25, 79, 122, 125, 480, 488, 493, 497, 537, 582, 595, 775, 914, 916.
• Code of Criminal Procedure: in particular article 4-1.
• Civil Code: article 1355.
• Code of Judicial Organisation (COJ): in particular L.452-1 et seq. (review after ECHR decision).
• Case law of the Cour de cassation and the Conseil d'État.
• Law no. 2000-647 of 10 July 2000.