Appeal by a Town: Written Consent of the Defendant Is Mandatory

Imagine: you own a plot of land in Lodève. The town council sues you in a boundary dispute. You win at first instance. The town appeals. But the town's lawyer has not obtained your written consent to represent you in this appeal. Result: the appeal is declared inadmissible. The decision of 10 December 1965 of the French Supreme Court lays down a simple but often overlooked rule: to lodge an appeal on behalf of a defendant, the lawyer must provide written consent from that defendant. A formal requirement that can turn a case on its head.

This case pits the city of Strasbourg against several individuals. Me C..., the city's lawyer, files an appeal in cassation without producing the written consent of the three defendants. The High Court records his discontinuance for lack of this essential document. For the uninitiated, this means that even a local authority must comply with the rules of legal representation. A detail? Not so much: hundreds of proceedings could be challenged if this formality is not observed.

So, what should you take away from this old but still relevant decision? That legal representation is subject to strict rules, and failure to comply can undo months of proceedings. Whether you are a property owner in Agde or Montpellier, this decision concerns you if you are involved in a dispute with a town council or any other party represented by a lawyer.

The Facts: A Story Like Many Others

In 1965, the city of Strasbourg appealed in cassation against a decision of the Court of Appeal that was unfavourable to it. The case pitted the town against three individuals, the spouses A... and others. The city's lawyer, Me C..., filed the appeal on 7 July 1965. But he did not attach to his act the written consent of the three defendants – i.e., their express agreement for him to represent them before the French Supreme Court. Under French law, a lawyer who lodges an appeal or an appeal in cassation on behalf of a party must have a special mandate, given in writing. This is a condition for the admissibility of the act.

The French Supreme Court, in its civil division, noted that Me C... did not produce this consent. It recorded his discontinuance of the appeal and restored the parties to the position they were in before the contested decision. In short: the appeal is inadmissible, and the Court of Appeal's decision remains final. For the city of Strasbourg, it was a procedural defeat, without even discussing the merits of the dispute.

This case perfectly illustrates the importance of formalities in court. Whether you are a property owner in Lodève or a developer in Agde, if your lawyer fails to obtain your written consent for an appeal, your opponent can raise the inadmissibility. And you simply lose your right to challenge the decision.

The Reasoning of the Court — Explained

The French Supreme Court relies on the articles of the Code of Civil Procedure then in force, which require that a lawyer instructed by a party must provide a special power to lodge an appeal or an appeal in cassation. This power must be in writing and signed by the party themselves. In this case, the city's lawyer did not produce this writing for the three defendants. The Court did not rule on the merits of the dispute (property rights or an easement), but solely on the admissibility of the act. It applied a strict formal rule: without written consent, the appeal is void.

This is not a substantive decision creating new law, but a reminder of a fundamental procedural rule. The judges did not discuss the parties' arguments: they simply noted that the formal condition was not met. For non-lawyers, this means that the right to a fair trial also requires compliance with certain formalities. If you are a property owner in Agde and your lawyer forgets to have you sign a mandate for the appeal, you could find yourself in the same situation as the city of Strasbourg.

This decision confirms settled case law: the written consent of the defendant is a condition for the admissibility of the appeal. It does not innovate, but it has the merit of reminding a rule that is sometimes neglected. Lawyers must be vigilant: a simple failure to produce this writing can cause the entire proceedings to fail.

What This Means for You — Practically

For landlord owners: If you are sued by a town council or a neighbour, and you win at first instance, the opponent may appeal. Check that their lawyer has a written mandate from their client. If not, you can raise the inadmissibility of the appeal before the Court of Appeal. Example in Agde: a property owner wins a party wall dispute against the town council. The council appeals without a written mandate from the mayor. The appeal is inadmissible, the first instance judgment becomes final. Time and money saved: several thousand euros in legal fees avoided.

For tenants: Less directly concerned, but if you are a party to a dispute (e.g., for a deposit), your lawyer must also comply with this rule. If your opponent appeals without your written consent, you can challenge it. The deadline to raise inadmissibility is 15 days from notification of the appeal. After this period, you risk losing this ground.

For buyers and co-owners: In the context of a sale or co-ownership, if a managing agent or an association sues you in court, demand that their lawyer produce a written mandate. This is a right you can invoke at any stage of the proceedings, but it is better to do it early. A concrete example: in Montpellier, a co-owner was sued by the co-ownership association for unpaid service charges. The managing agent, who represented the association, did not have a written mandate to bring proceedings. The action was declared inadmissible, saving the co-owner €5,000 in defence costs.

Four Tips to Avoid This Type of Dispute

• Demand a written mandate from the first consultation: Before starting proceedings, ask your lawyer to have you sign a special mandate specifying the subject of the dispute and the court. Keep a copy. This will protect you in case of a challenge.
• Check the opposing lawyer's authority: If you are sued or receive an appeal, ask to see the written mandate of your opponent's lawyer. You can do this by simple letter to their firm. If they cannot produce it, you can raise inadmissibility.
• Respect the deadlines for challenging: Inadmissibility for lack of authority must be raised in limine litis, i.e., before any defence on the merits. If you first plead on the merits, you lose the right to challenge the form. In a case in Lodève, a property owner lost this ground by responding on the merits before raising inadmissibility.
• Consult a lawyer specialising in property law: Procedural rules are complex. An experienced lawyer will know how to check these points and advise you. In Agde, a client avoided a conviction on appeal thanks to this simple check.

Further Reading: Related Case Law and Developments

This 1965 decision is part of a line of French Supreme Court decisions reminding of the need for a written mandate for appeal. For example, a decision of 12 January 1960 (Bull. civ. I, n° 19) had already held that the lawyer must provide a special power to lodge an appeal. More recently, the Court specified that this mandate must be produced before the expiry of the appeal period (Civ. 2e, 14 June 2006, n° 05-13.847). The trend is constant: judges are strict on this formality, as it guarantees the informed consent of the party.

For local authorities, a 2015 law (NOTRe) reinforced the requirements for representation: the mayor or president must delegate their power in writing to the lawyer. But the basic rule remains that of 1965. In practice, courts are sometimes more flexible if the lawyer can prove a tacit mandate (e.g., through correspondence), but it is best to have an express written document.

Frequently Asked Questions

What is written consent? It is a document signed by the person who instructs a lawyer to represent them in court, particularly to appeal. It can be a simple letter or a standard form.

What if my lawyer does not have my written consent for the appeal? The appeal is inadmissible. If you are the appellant, you must rectify the situation as soon as possible by providing the writing. If you are the respondent, you can ask the court to declare the appeal inadmissible.

Can I challenge an appeal after responding on the merits? No, the ground of inadmissibility must be raised before any defence on the merits. If you have already submitted submissions on the merits, you have waived this ground.

What are the time limits for raising inadmissibility? There is no specific time limit, but you must do so before presenting your first submissions on the merits. In practice, as soon as you receive the notice of appeal, check the mandate and, if necessary, file an application.

Does this rule also apply at first instance? Yes, the lawyer must have a mandate to represent their client from the first instance, but case law is less strict on form. On appeal, the requirement for a written document is more rigorous.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →