Summons to judge: a remedy against denial of justice

Your case is ready. The pleadings are over. And yet no decision is forthcoming. Weeks go by, then months. The judge seems to have forgotten about your case. What can you do about it? The summons to judge is a little-known but powerful tool for forcing a judge to hand down a decision.

Summons to judgment: definition and particularities

The summons to judge is defined as "the document issued by a bailiff by which a party to a lawsuit enjoins the judge hearing his case to give a ruling on pain of being taken to court on the grounds of denial of justice" (Laher, 2020).

Unlike other summonses, this one does not take place outside proceedings but rather within their precise framework. It is a direct response to the denial of justice defined in article L.141-3 of the Code of Judicial Organisation as the situation where "judges refuse to respond to requests or neglect to judge cases that are ready and in the right state to be judged".

The practice has deserted it in recent years. Why not? Probably for fear of offending the judge. Yet it is still enshrined in article 366-9 of the Code of Civil Procedure.

A limited but strategic scope

The recipients specified in the legislation

The summons to judge can only be sent to courts composed of lay judges:

• Industrial tribunal (Civ. 1re, 3 July 1990)
• Commercial court (Civ. 1re, 19 November 1985)
• Joint rural leases tribunal

For professional magistrates, the remedy is an action against the State for defective operation of the public justice service (art. L.141-1 of the COJ).

Untapped potential applications

However, there is nothing to prevent a summons being served on a professional magistrate. Without authorising the taking of sides, it could:

• Apply psychological pressure
• Providing evidence for an action against the State
• Demonstrating the existence of a denial of justice

Rigorous formalities

Mandatory double summons

The originality of this summons lies in the fact that it must be repeated. Article 366-9 of the CPC requires it to be "repeated after a period of eight days". If it is not served a second time, the third-party proceedings become inadmissible.

An indirect meaning

Another special feature is that, unlike conventional summonses, this one is not delivered directly to the addressee. It must be "delivered by a bailiff to the court registry", which will forward it to the judge.

This rule protects the judge while giving internal publicity to the denial of justice.

The summons can be targeted:

• A named judge
• One bedroom
• The entire jurisdiction

Significant legal effects

Psychological effects

The summons to judge deploys a triple pressure mechanism on its addressee:

1. The threat of civil liability through taking sides
2. The risk of disciplinary action for breach of duty (art. L.724-1 C.com, L.1442-13 C.trav)
3. The possibility of disqualification, in particular for industrial tribunal members (L.1442-12 C.trav)

Condition for admissibility of the statement of defence

The main effect remains procedural: without this double summons, the action for denial of justice becomes inadmissible.

If the judge does not comply with one of the summonses when handing down his decision, the summons loses its purpose.

Impact on the lapse of proceedings

Although the case law remains uncertain, the first summons may interrupt the two-year limitation period. It demonstrates "the desire to give impetus to the proceedings" (Civ. 2e, 2 June 2016) and to "move the dispute towards its resolution" (Com. 3 Oct. 2018).

At a time when legal deadlines are getting longer, this procedure deserves to be rediscovered. It confronts the judge with his responsibilities without exposing him to unjustified actions.

Don't be helpless in the face of prolonged legal silence. Our firm will analyse your situation to determine whether this recourse is appropriate. Contact us for an initial assessment of your case.

Sources

• Laher, R. (2020). Repertory of civil procedure - SummonsSection 3 - Summons to judgment, §§ 55-69.
• Code of judicial organisation, articles L.141-1 and L.141-3
• Code of Civil Procedure, article 366-9
• Court of Cassation, 1st Civil Division, 3 July 1990, No. 90-01.004
• Court of Cassation, 1st Civil Chamber, 19 November 1985, Bull. civ. I, no. 310
• Court of Cassation, 2nd Civil Chamber, 2 June 2016, no. 15-17.354
• Court of Cassation, Commercial Chamber, 3 October 2018, no. 17-10.225