The main principles of civil litigation: who does what between the parties and the judge?

The course of a civil trial can often seem like a complex mechanism, with its rules, deadlines and players with well-defined roles. But for those unfamiliar with the legal world, understanding who is in control at each stage is essential. A poorly initiated or poorly followed procedure can have major consequences. This article aims to shed light on the fundamental 'guiding principles' that govern civil litigation in France. These are the basic rules that structure any procedure and divide the initial responsibilities between you, the parties to the proceedings, and the judge.

Here we look at why it is primarily the parties who initiate the proceedings and drive them forward, but also how the judge intervenes to ensure that everything is done correctly and fairly. These principles form the basis of our civil justice system.

Understanding the guiding principles of civil litigation

Before going into the details of the roles, let's look for a moment at what these "guiding principles" are. Codified at the very beginning of the Code of Civil Procedure, they represent, in a way, the heart of the rules of the judicial game. Their aim is to ensure the coherence of the procedure and to guarantee a fair balance between the defence of your private interests and the public service mission fulfilled by the judge.

Historically, these principles have made it possible to move beyond an outdated vision of the trial in which the judge would have been no more than a passive arbitrator. Instead, the idea is one of supervised collaboration, where everyone has their place and responsibilities in reaching a legal decision. Knowing these principles, even in outline, is useful: it helps you better understand your rights, but also your obligations when you are involved in proceedings.

The principle of initiative: the keys to the proceedings in the hands of the parties

The very first rule set out in Article 1 of the Code of Civil Procedure is simple but fundamental: "Only the parties initiate proceedings, except where the law provides otherwise. This is known as the initiative principle.

Starting the trial: an almost exclusive prerogative

In practical terms, this means that it is up to you, if you feel you have a claim to make, to take the decision to go to court. The judge does not intervene on his own to settle private disputes. This rule is the logical extension of everyone's freedom to exercise their rights: you are free to take legal action, or not.

Admittedly, the law provides for some very rare exceptions where the judge can refer the matter to the court of its own motion. In the past, this was the case in certain collective proceedings concerning companies in difficulty, but the Constitutional Council ruled that such ex officio referrals were contrary to the principle of the judge's impartiality (QPC decisions from 2012 to 2014). Today, referral by the civil court of its own motion has become the exception rather than the rule, and mainly concerns very specific situations, such as educational assistance for a child in danger, where the child's best interests justify protective intervention (article 375 of the Civil Code).

Mention should also be made of the role of the public prosecutor. While it may sometimes act before the civil courts, it does so as the "principal party", defending the general interest, and not as the judge bringing the case himself. The principle that the initiative rests with the parties therefore remains the predominant rule.

Ending a trial before judgment: another fundamental freedom

At the same time, Article 1 of the Code of Civil Procedure stipulates that the parties must "have the freedom to terminate it before it is extinguished by the effect of the judgment or by virtue of the law".. As long as the judge has not handed down his final decision, you therefore retain the possibility, with your opponent or sometimes on your own, of stopping the proceedings.

There are several mechanisms for achieving this:

• La transaction Settlement: This is an agreement that you reach with the other party to put an end to the dispute. It puts an end to the proceedings once and for all.
• Le withdrawal You may decide to abandon your action or simply the proceedings in progress. Depending on the case, your opponent's agreement may be required.
• L'compliance Your opponent may acknowledge that your claim is well-founded and accept what you are asking for.

It is even possible to "pause" the proceedings. The parties can jointly request the withdrawal from the roll of the case (article 382 of the Code of Civil Procedure), for example to give themselves time to negotiate. The conclusion of a participatory procedure agreement for the purposes of readiness for hearing (provided for in Article 1546-1 of the Code of Civil Procedure) also leads to interruption of the proceedings (article 369 of the same code), allowing the lawyers time to manage this phase together.  

The management principle: the parties lead the proceedings

Once the body has been launched, who is responsible for driving it forward? Here again, it is primarily the parties. Article 2 of the Code of Civil Procedure states that "The parties shall conduct the proceedings in accordance with their respective responsibilities. This is the principle of direction.

Performing the necessary acts: a "burden" for the parties

Leading the case is not only a right, it is also an obligation, a "burden". This means that you must be active if your case is to progress. In practical terms, it is your responsibility to perform the expected procedural acts:

• Exchange your written arguments (conclusions).
• Communicate your evidence.
• Comply with the required forms (for example, pleadings must be structured in a certain way before the Court of First Instance or the Court of Appeal, in accordance with articles 768 and 954 of the Code of Civil Procedure).
• Respect the deadlines set by the judge or the law.

Failure to comply with these requirements may have direct consequences. The judge may decide to rule solely on the basis of the evidence already before him, even if it is incomplete (article 469 of the Code of Civil Procedure). He may also decide to strike out the case (it is temporarily set aside) or even declare the claim null and void (it disappears) if the claimant does nothing (article 470 of the Code of Civil Procedure). Compliance with time limits is also considered to be a component of a fair trial.

There has even been a recent trend towards making these formal requirements more onerous, with the stated aim of improving the efficiency of the justice system. This sometimes makes the procedure more complex for unassisted litigants.

The participatory procedure: a parenthesis controlled by the parties

As mentioned above, the participatory procedure agreement (article 1546-1 of the Code of Civil Procedure) enables the parties and their lawyers to temporarily regain direct control of the pre-trial phase, without the immediate intervention of the judge, illustrating a form of return to management by the parties, but within a specific contractual framework.

The judge's control over the conduct of the proceedings

Although the parties have the initiative and the main direction of the proceedings, the judge is not a passive spectator. Article 3 of the Code of Civil Procedure gives the judge an essential role: *The judge must ensure that the proceedings run smoothly". *To this end, he has significant powers.

The task of ensuring that things run smoothly

This general supervisory role means that the judge must ensure two main things:

• Fair debate : The judge must ensure that exchanges between the parties are honest and respectful. The Cour de cassation has even stated that it is "bound to respect and ensure respect for the fairness of debates". (Civ. 1ère, 7 June 2005).
• The speed of the procedure : The judge must work to ensure that the case is heard within a reasonable time, a requirement of the right to a fair trial guaranteed by article 6 of the European Convention on Human Rights. Imagine the anguish of a trial that drags on for no good reason... The judge has a role to play in avoiding this.

The judge's practical powers

The courts have a number of practical tools at their disposal to fulfil their supervisory role, which are also provided for in Article 3:

• Outsource deadlines: It sets the pace of the procedure, in particular via the procedural timetable (or pre-trial timetable), which schedules the exchange of pleadings and the date on which the hearing will be closed (article 781 of the Code of Civil Procedure). The court may impose penalties for failure to comply with the deadlines it has set.
• Order the necessary measures:
  • It can direct the caseFor example, by deciding to join two related proceedings or, on the contrary, to separate certain parts of them, or by ordering a stay of proceedings (a pause) if the circumstances so require.
  • It can send injunctions to the parties, i.e. to give them specific orders (for example, an order to disclose an essential document).
  • To ensure the effectiveness of its injunctions, it may attach to them a on-call dutyIn other words, a financial penalty for each day's delay (article 33 of the law of 9 July 1991).

The conduct of civil proceedings therefore involves a subtle balance: the parties are the main drivers of the proceedings, but the judge is the guarantor and regulator. Misunderstanding this division of roles can lead to delays, inadmissibility and even the loss of your rights. To ensure that you are taking the right steps and that the proceedings are being conducted efficiently and in your best interests, it is often a good idea to seek support. Our firm can analyse your situation and advise you on the best strategy to adopt. Contact us to discuss your situation.

Sources

• Code of Civil Procedure: articles 1, 2, 3, 16, 21, 56, 369, 382, 468, 469, 470, 768, 781, 954, 1546-1.
• Civil Code: article 375.
• Law no. 91-647 of 9 July 1991 on legal aid: article 33.
• European Convention for the Protection of Human Rights and Fundamental Freedoms: article 6.
• QPC decisions of the Constitutional Council (2012-2014) relating to ex officio referrals in collective proceedings.
• Case law of the Cour de cassation (in particular Civ. 1ère, 7 June 2005, no. 05-60.044 on the fairness of debates).