Review proceedings: when and how to challenge a final judgment

Res judicata is a fundamental pillar of our legal system. But what can be done when a final judgment is based on fraud or a major error? French justice provides an exceptional solution: an application for judicial review. Our firm regularly finds that many litigants are unaware of this legal remedy, and feel that they have been definitively defeated. This article describes the cases in which a judgement can be challenged despite being final.

What is an application for review?

An application for judicial review is an extraordinary means of challenging a judgment that can no longer be contested through the ordinary channels (appeal, opposition). Article 593 of the Code of Civil Procedure defines it precisely: it "seeks to set aside a judgment that has become res judicata so that a new decision can be made on the facts and on the law".

This procedure is designed to correct judicial errors caused by incomplete or falsified information that misled the judge. It makes it possible to challenge a judgement even when all appeal deadlines have expired - sometimes years ago.

An application for judicial review is clearly distinct from other forms of appeal:

• Unlike an appeal, it does not seek a general review of the dispute.
• Unlike an appeal on a point of law, it does not challenge the application of the law, but questions the assessment of the facts.
• Unlike third-party proceedings, it is filed by a party to the judgment and not by a third party.

This remedy is part of the French legal tradition which, despite the importance attached to the stability of court decisions, recognises that the truth must sometimes prevail over res judicata.

What decisions can be reviewed?

The essential condition: the force of res judicata

In order to be subject to an application for review, a decision must have acquired the force of res judicata. According to article 500 of the Code of Civil Procedure, this status attaches to a judgment that is no longer subject to any appeal suspending enforcement.

In practice, this means

• First instance judgements not subject to appeal
• Judgements against which the time limits for appeal have expired
• Court of Appeal rulings, since an appeal in cassation does not have suspensive effect (with certain exceptions)

This requirement reflects the subsidiary nature of the application for review: as long as an ordinary remedy remains open, it must be used. This is all the more true for procedures with strict time limits, such as the seizure of property, where it is crucial to mount a defence at first instance to avoid arguments being inadmissible on appeal.

Areas of application

An application for judicial review may be made in all civil, commercial, rural or labour matters. Article 749 of the Code of Civil Procedure specifies this general application.

This remedy is also available in domestic arbitration. Article 1502 of the Code of Civil Procedure expressly authorises an application for review of an arbitral award, even if the arbitral tribunal has ruled as amiable compositeur. Since the 2011 reform, this possibility has also been extended to international arbitration.

In non-contentious matters, although the Code is silent on the subject, case law generally accepts an application for review. For example, the Cour de cassation has upheld an application for review of a judgment approving a change of matrimonial property regime (Civ. 1re, 5 January 1999, no. 96-22.914).

For divorce judgments, the situation is more complex. Although the principle of divorce itself is difficult to revoke, the final financial provisions may be reviewed (Civ. 2e, 23 October 1991, no. 90-10.015). However, in the case of divorces by mutual consent, the Cour de cassation has denied this possibility on the grounds of the indivisibility between the pronouncement of the divorce and the approval of the agreement (Civ. 1re, 5 November 2008, no. 07-14.439).

Which decisions are not subject to review?

By their very nature, certain decisions cannot be reviewed:

Interim decisions

Interim orders cannot be the subject of an application for review. This has been clearly established by the Court of Cassation (Civ. 2e, 27 April 1988). This exclusion is explained by the fact that these decisions can already be modified or retracted in the event of new circumstances under article 488 of the Code of Civil Procedure.

The same logic applies to motion orders and interim provisions ordered during divorce proceedings.

Court of Cassation rulings

Decisions handed down by the Cour de cassation cannot be the subject of an application for review (Civ. 3e, 12 June 1991, no. 90-15.411). This exclusion is explained by the very function of the Cour de cassation, which reviews the application of the law but does not assess the facts. However, applications for judicial review concern precisely errors in the materiality of the facts.

Criminal court decisions

Decisions handed down by criminal courts, even when they rule on civil interests, cannot be the subject of an application for review within the meaning of the Code of Civil Procedure. The Court of Cassation justifies this exclusion by the regulatory nature of the provisions of the Code of Civil Procedure, which cannot be applied to criminal courts falling within the legislative domain (Crim. 19 January 1982).

However, the Code of Criminal Procedure provides for its own review procedure for criminal convictions.

Who can lodge an application for review?

The parties to the contested judgment

In accordance with article 594 of the Code of Civil Procedure, an application for review may only be lodged by persons who were parties to or represented in the judgment.

This status applies to the plaintiff, defendant and interveners in the initial proceedings. It also extends to persons represented at the time of the judgment, such as children represented by their parents in a judgment approving a change of matrimonial property regime (Paris, 31 October 1996).

On the other hand, third parties who have nothing to do with the dispute cannot exercise this right of appeal. If they wish to challenge a judgement, they must file a third-party objection.

Interest in acting

As with any legal action, the applicant for judicial review must demonstrate an interest in having the judgment set aside. This condition, set out in article 31 of the Code of Civil Procedure, excludes actions brought by a party who has obtained satisfaction in the contested judgment.

The question of renunciation

Can the right to lodge an application for review be waived in advance? Case law generally considers that such an advance waiver is not valid, particularly in cases of fraud. Since none of the grounds for initiating an application for judicial review are unrelated to the notion of fraud, any prior waiver would be contrary to the fundamental principle that "fraud corrupts everything" (fraus omnia corrumpit).

This solution has been adopted by a number of courts, which have rejected clauses waiving any right of appeal where fraud has been established. This principle protects litigants against unfair manoeuvres aimed at depriving them of this final means of appeal.

Grounds for review of a judgment

To be admissible, an application for review must be based on one of the four grounds listed exhaustively in article 595 of the Code of Civil Procedure:

1. Fraud by the party in whose favour the judgment was given
2. Recovery of decisive evidence withheld by another party
3. Judgment given on documents acknowledged or judicially declared to be false
4. Judgments based on statements, testimony or oaths declared false by a court of law

These cases share a common feature: they all concern a factual error that misled the judge and distorted his assessment of the dispute.

The claimant must prove that this cause of action was not discovered until after the judgment had been handed down and that he was unable, through no fault of his own, to assert it before the judgment became res judicata.

In order for an appeal to be successful, the cause of action must have had a decisive influence on the contested judgment. In other words, the judge would not have reached the same decision if he had known all the facts.

Our firm has observed that fraud is the most frequently cited cause of action for judicial review. It is characterised by unfair acts designed to mislead the judge, such as the production of false documents or the concealment of decisive elements.

If you believe you have been the victim of a judgment based on erroneous or fraudulent information, our team of lawyers can assess whether your situation corresponds to one of the legal grounds for review. A detailed analysis of your case will enable us to determine whether it is appropriate to initiate this exceptional procedure and to assist you in its implementation.

Sources

• Code of civil procedure, articles 593 to 603
• Code of Civil Procedure, article 749 on the scope of application
• Civ. 1re, 5 January 1999, no. 96-22.914 (homologation of change of matrimonial property regime)
• Civ. 2e, 27 April 1988 (summary orders)
• Civ. 3e, 12 June 1991, no. 90-15.411 (Court of Cassation rulings)
• Crim. 19 January 1982 (criminal court decisions)