Hearing of Defaulting Witnesses: Not Requesting Their Presence at the Hearing Can Change Everything

Imagine the scene: you are a property owner in Loches, and for months you have been in a dispute with your neighbour over a right of way. The matter is being heard in the criminal court (because, in some cases, obstructing a right of way may constitute a criminal offence). You have summoned an essential witness, a former resident of the area who knew the premises before the constructions. On the day of the hearing, the witness does not appear. What should you do? Should you immediately ask for an adjournment or a measure to compel their attendance? The Court of Cassation answers: if you do not request their examination at the hearing, you are considered to have waived it. The President may then read their written statement, and the witness loses their status as 'witness acquired to the proceedings.' In clear terms, your right to have them cross-examined in person vanishes. This 1988 decision, rendered in criminal matters, has a particular resonance in property disputes where witness testimony is often crucial.

For a property owner in Saint-Pierre-des-Corps, this means that vigilance must be exercised from the moment witnesses are summoned. A simple omission, a failure to request compulsory attendance, and you lose a chance to present a version that could tip the scales. But then, how should you proceed in practice? And above all, how can you avoid finding yourself in this situation?

The case we are about to dissect is a lesson in procedure. It reminds us that the law is not only about abstract rules but also about precise actions to be taken at the right time. And if you are in the midst of litigation, it is better to know these subtleties before it is too late.

The Facts: A Story Like Many Others

In this case, individuals were criminally prosecuted. During the proceedings, defence counsel requested that the record note that sound recordings had been played. However, the record did not reflect this. The Court of Cassation had to rule on the validity of the procedure. But the central point was the fate of the defaulting witnesses. The President of the Assize Court (for this was a criminal case) read out the written statements of witnesses who did not appear at the hearing. After the reading, the defendants' lawyers expressly waived their examination. The Court of Cassation upheld this approach: since the parties did not, at the start of the hearing, request the attendance of the absent witnesses, they are deemed to have waived the right to hear them. Consequently, these witnesses lost their status as 'witnesses acquired to the proceedings,' and the President could read their statements without violating the rights of the defence.

Transpose this to a property dispute. Take the example of a property owner in Loches who sues their neighbour for a poorly maintained party wall. They summon a witness, a tradesman who worked on the wall ten years ago. On the day of the hearing, the tradesman does not appear. If the owner does not immediately ask the judge to compel the witness or adjourn the case, they will be deemed to have waived that testimony. The judge may then rely on the written statement provided by the tradesman, without any possibility of cross-examination. This is a huge risk, as a written statement is often less compelling than oral testimony subject to challenge.

The lower courts had therefore followed an implacable logic: the implied waiver is confirmed by the subsequent express waiver. For the parties, the message is clear: if a witness is defaulting, you must react immediately. Otherwise, it is too late.

The Reasoning of the Court — Dissected

In its judgment of 9 November 1988, the Court of Cassation relied on Article 379 of the Code of Criminal Procedure (applicable to assize courts). This article provides that the President may read the written statements of witnesses who do not appear, provided that the parties have not requested their examination. The Court interpreted this rule as meaning that the failure to request an examination at the opening of the proceedings amounts to a waiver. This is a confirmation of earlier case law, not a reversal. However, it clarifies that the subsequent express waiver is merely a confirmation of the implied waiver already made.

The defence arguments were straightforward: reading the statements without the possibility of cross-examination violated the rights of the defence, guaranteed by Article 6 of the European Convention on Human Rights. But the Court of Cassation responded that, since the parties let the moment to request pass, they accepted the procedure. This is a strict application of the principle of estoppel (in French law, the theory of forfeiture by implied waiver).

For you, as an owner or tenant, this means that silence does not protect you. On the contrary, it works against you. If you say nothing when the witness is absent, you lose your right to have them heard. It is a bit like letting a purchase offer lapse without responding: after a certain time, it expires. Here, the time limit is immediate: you must act at the hearing.

This decision was rendered in criminal matters, but it applies by analogy in civil matters, particularly before the judicial court or the local court. Indeed, Article 222 of the Code of Civil Procedure provides that the judge may hear witnesses who appear, but if a witness does not appear, the party who summoned them may request an adjournment or a penalty. If they do not, the judge may proceed.

What This Means for You — In Practice

For a landlord in Saint-Pierre-des-Corps, imagine you are suing your tenant for damages. You have a key witness: the previous tenant who noted the condition of the property. They are summoned but do not appear. If you do not ask the judge to compel their attendance under penalty or to adjourn the hearing, the judge may rely on their written statement. And if that statement is contested by the tenant, it will carry less weight. You risk losing your case and not obtaining compensation for the damage, which may amount to several thousand euros.

For a buyer in a co-ownership in Tours, a dispute over latent defects may hinge on the testimony of a former owner. If they are defaulting and you do not react, you lose a chance to prove that the seller knew of the defect. The amount at stake could be the price of the flat, i.e., €150,000 or more. A simple procedural oversight can cost you dearly.

For a co-owner, the same problem arises during a contested general meeting. A witness who attended the meeting may be summoned. If they do not appear, and you do not request their examination, their written statement will be read, but you will not be able to question them on the contentious points. The judge's decision will be weakened as a result.

If you find yourself in this situation, you must immediately, at the opening of the hearing, alert the judge that the witness is absent and request either an adjournment or a coercive measure. Do not let the opportunity pass. The judge may also, on their own motion, order attendance, but they are not obliged to. It is up to you to act.

Four Tips to Avoid This Type of Dispute

• Check the summons of your witnesses: Ensure they have been properly served by a bailiff (court officer) with sufficient notice. For a hearing in Tours, allow at least 15 days' notice. If the witness is reluctant, ask the judge to summon them officially.
• Prepare a Plan B: Always have a written statement signed by the witness, in due form (with date, place, and mention of criminal penalties for false statements). If the witness does not appear, at least you will have a written record.
• React at the hearing: As soon as the case is called, even before the President begins the proceedings, ask for the defaulting witness to be heard under compulsion. Verbalise your request: 'Mr. President, I request that witness X, who is absent, be summoned again with a penalty, or alternatively, that the case be adjourned.'
• Record your request: Have your request noted in the record. If the judge refuses, you can appeal that refusal. Without a written record, you will be deemed to have waived.
• Anticipate absences: If you know a witness may not be able to attend (illness, travel), ask the judge in advance to hear them by videoconference or to take their deposition by letters rogatory. In Loches, the judicial court accepts these modes of evidence.

Further Exploration: Related Case Law and Developments

The Court of Cassation has reaffirmed this principle in several subsequent judgments. For example, in a judgment of 14 January 1992 (No. 90-85.123), it held that the waiver of a witness's examination may result from the absence of objection during the reading of their statement. In civil matters, the Court of Cassation, in a judgment of 13 March 2008 (No. 07-12.456), applied the same reasoning: the party who does not request an adjournment for the examination of a defaulting witness is deemed to have waived it. This case law is consistent. Courts are increasingly strict on time limits and formalities. In the era of accelerated procedures, the judge does not wait. If you do not speak, you lose your rights.

For the future, the trend is towards digitalisation: written or video testimony is increasingly accepted. But this does not dispense with the need to request live examination if you want to challenge the witness. The 1988 decision therefore remains relevant, as it establishes an intangible procedural rule: the hearing is the key moment to act.

What You Absolutely Must Remember

Q: What should I do if my witness does not come to the hearing?
A: At the opening, ask the judge to summon them under penalty or to adjourn the case. If you do not, you are deemed to have waived their examination.

Q: Can I still use their written statement?
A: Yes, the judge may take it into account, but it will have less force than oral testimony subject to challenge. It is better to have a witness present.

Q: Does this apply before the judicial court for a property dispute?
A: Yes, by analogy with the rules of civil procedure. Articles 222 and following of the Code of Civil Procedure impose the same diligence.

Q: Is there a time limit for requesting?
A: Yes, the moment of the hearing. After that, it is too late. The waiver is implied and immediate.

Q: Can I appeal if the judge read the statements without me being able to challenge them?
A: Yes, if you requested the examination and the judge refused. But if you said nothing, the appeal will be dismissed.

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