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Failing to attend a court hearing has far-reaching legal consequences. This absence, known as a "failure to appear", profoundly alters the course of the trial. It can affect both the plaintiff and the defendant, with different effects depending on the case. Understanding these mechanisms will enable you to act effectively in these delicate situations.
Failure of the claimant to appear
The claimant initiates the proceedings. However, his absence from the hearing creates a paradoxical situation. Article 468 of the Code of Civil Procedure provides for three possible outcomes.
The defendant may request a judgment on the merits. This judgment will then be "contradictory", even in the absence of the plaintiff. The judge examines the initial claim and rules on the basis of the evidence available. This option is to the advantage of defendants who wish to close the case definitively.
The court may also declare the summons null and void, of its own motion or at the request of the defendant. This sanction annuls the document initiating proceedings. The plaintiff loses the benefit of the interruption of the limitation period. This decision may be reversed if the plaintiff provides a legitimate reason within 15 days.
Finally, the judge retains the option of adjourning the case to a later date. This postponement becomes compulsory if the claimant can show a legitimate reason for absence before the hearing.
The order for payment procedure is a good illustration of these mechanisms. During opposition proceedings, the creditor remains the claimant. If the creditor is absent, the initial proceedings may lapse.
Failure of the defendant to appear
The defendant's absence does not block the proceedings. Article 472 of the Code of Civil Procedure requires the court to rule on the merits of the case despite the defendant's absence. The judgment will not automatically be favourable to the plaintiff.
The judge must check several elements. First, he must check that the summons is in order and that the time limit for appearing has expired. He then examines the admissibility and merits of the claim with particular vigilance. Case law shows that the judge must analyse the grounds put forward and the documents produced by the plaintiff.
Incidental claims against an absent defendant follow strict rules. Article 68 of the Code of Civil Procedure requires them to comply with the form in which proceedings were commenced. This protection avoids surprises for the defaulting defendant.
If the summons is delivered to the wrong address, the defendant has specific remedies. Proof that it was impossible to take cognisance of the document may justify annulment of the proceedings.
Classification of the judgment in the event of default by the defendant
La classification of the judgment determines the remedies available. It varies according to different criteria.
Article 473 of the Code of Civil Procedure lays down clear rules for a single defendant:
- The judgment is rendered by default if, cumulatively, the decision is final and the summons was not delivered in person.
- In all other cases, the judgment is deemed to be contradictory.
Where several defendants are summoned for the same cause of action, Article 474 of the Code provides:
- A single judgment for all defendants
- A judgment by default if the decision is final and at least one of the defendants has not been summoned in person
- A judgment deemed to be contradictory in other cases
A default judgment may be opposed. This remedy allows the defaulting party to have the case retried by the same court. A judgement deemed to be contradictory can only be contested by appeal or cassation.
The personal summons is a decisive criterion. It proves that the defendant was aware of the proceedings. The legislator therefore considers its absence to be a deliberate choice that does not merit the protection of the opposition.
What should you do if you fail to appear?
The possible actions depends on your position in the proceedings and the decision handed down.
If the claimant is faced with a nullity, the application for withdrawal is a solution. It must be sent to the court clerk's office within 15 days of the hearing. The request must set out a legitimate reason for absence and explain why it was impossible to notify the court before the hearing. The judge may then withdraw his decision and set a new hearing date.
For the convicted defendant, it is essential to identify the exact nature of the judgment. It determines the appropriate recourse:
- Opposition to a default judgment (one month deadline)
- Appeal against a judgement deemed to be contradictory (also within one month)
La notification of judgment is an essential act that triggers these time limits, and the rules governing it are highly regulated.
Particular attention must be paid to judgments handed down in industrial tribunal cases. The principle of a single instance reinforces the impact of the lapse of proceedings. Article R. 1454-21 of the Labour Code sets out special rules.
Preventive strategies do exist. Appointing a lawyer remains the surest way of avoiding the risks associated with absence. The lawyer represents the party even in his absence and ensures that procedural rights are respected.
Failure to comply with the time limits for lodging an appeal will result in the case being foreclosed. This sanction renders a contestable judgement final. There are mechanisms for lifting the time limit, but the conditions for their application remain strict.
If you have missed a hearing or received a judgment as a result of your absence, don't wait. The deadlines for taking action are short and strict. Our firm can analyse your situation and quickly determine the appropriate action, including in the event of enforcement procedures.
Sources
- Code of Civil Procedure, articles 467 to 479
- Code of Civil Procedure, article 68 (incidental claims)
- Labour Code, article R. 1454-21 (industrial tribunal procedure)
- Court of Cassation, 2nd Civil Chamber, 10 March 2011, no. 10-30.577 (payment order)
- Court of Cassation, 2nd Civil Division, 8 February 2024, no. 21-25.928 (failure of plaintiff to appear)
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