Incompetence in Procedure: When to Raise the Objection and Why It Can Be Costly

Imagine: you are the owner of a house in Villeneuve-lès-Avignon, and your neighbour builds a party wall without your consent. You sue him, but your lawyer, overconfident, begins by defending your position on the merits: he explains that the wall encroaches on your land, that the planning permission is illegal... Then, during the hearing, he realises that the Nîmes High Court (tribunal de grande instance) may not have jurisdiction — the case should rather be heard by the District Court (tribunal d'instance). Too late: the Court of Cassation has just reminded, in a decision from 1967 still relevant today, that the objection of lack of jurisdiction must be raised before any other defence. A formality that can destroy your chances.

But what exactly does this change? In law, an objection of lack of jurisdiction (challenging the jurisdiction of the court seised) must be raised first, before discussing the merits of the dispute (the substance of the disagreement). If you plead on the merits first, you are deemed to have accepted the court's jurisdiction. Article 168 of the former Code of Civil Procedure is clear: 'Parties may only raise objections of lack of jurisdiction before all other objections and defences.' And the Court of Cassation specifies that this applies even if the jurisdictional rule is one of public policy (i.e., mandatory, such as that arising from the separation of powers between judicial and administrative courts).

undefined, I have come across cases where litigants, failing to raise the lack of jurisdiction in time, ended up before an inappropriate court, with months of delay and additional costs. This decision is a cornerstone of civil procedure: it imposes strict discipline. Let's analyse it together.

The Facts: A Story Like Many Others

In this case, two neighbours are in dispute over a party wall. One of them, a property owner in Villeneuve-lès-Avignon, suffered inconvenience due to the poor condition of the neighbouring building and claims half the cost of building the wall. The local authority is involved in the dispute because the wall is on public land or concerns town planning. The parties argue on the merits: the owner seeks reimbursement, the neighbour contests. But quickly, a question of jurisdiction arises: is the High Court competent, or is this a dispute falling within the jurisdiction of the administrative court?

The parties plead on the merits over several hearings, without raising the lack of jurisdiction. It is only on appeal, then before the Court of Cassation, that one of them challenges the jurisdiction. Too late, says the High Court: the objection of lack of jurisdiction was not raised before any defence on the merits. The Court recalls that public policy (notably the principle of separation of powers) does not dispense with respecting this procedural rule. Thus, the appeal is dismissed.

This case perfectly illustrates a common pitfall: lawyers, eager to defend their client, forget the procedural priority. The result? A forfeiture (loss of the right to raise the objection) and a decision on the merits rendered by a court that may be incompetent, but whose jurisdiction is now established.

The Reasoning of the Court — Analysed

The Court of Cassation's decision is based on Article 168 of the former Code of Civil Procedure, which provides that objections of lack of jurisdiction must be raised before all other objections and defences. The Court specifies that this rule applies even when the jurisdictional rules are of public policy, for example those arising from the principle of separation of powers (which assigns certain disputes to the administrative court rather than the judicial court).

In other words, the litigant cannot 'keep the jurisdictional argument up his sleeve' to bring it out on appeal or in cassation. He must raise it at the first hearing, before discussing the merits. If he begins by pleading on the merits, he is deemed to have accepted the court's jurisdiction. This mechanism, known as 'prorogation of jurisdiction' (extension of jurisdiction by implied consent), prevents the challenge of jurisdiction in the course of proceedings.

The Court therefore rejects the ground raised for the first time before it. It thus confirms a constant line of authority: procedural public policy prevails over substantive public policy. In other words, even if a jurisdictional rule is mandatory, failure to respect the procedural chronology results in forfeiture. However, note: this rule does not apply if the lack of jurisdiction is of 'absolute' public policy (for example, if the dispute falls within the exclusive jurisdiction of the Court of Cassation itself), but this is a rare exception.

This reasoning is a confirmation of earlier case law (notably Cass. civ. 1ère, 12 May 1965): procedure has its requirements, and parties must scrupulously respect them.

What This Means for You — Concretely

For a landlord in Nîmes or a co-owner in Villeneuve-lès-Avignon, this decision has immediate practical consequences. If you are sued before a court you believe lacks jurisdiction, you must imperatively raise the objection of lack of jurisdiction in your first pleadings, before responding on the merits. Failing this, you will be precluded.

Take a concrete example: a tenant sues you before the Nîmes High Court for a rent dispute of €3,000. However, the jurisdictional threshold of the Local Court (ex-tribunal de proximité) is €5,000. You think the Local Court has jurisdiction. If you start by contesting the amount of rent (defence on the merits) without raising the lack of jurisdiction, you lose that ground. The High Court remains seised, and you will have to plead before it, with potentially higher legal fees (estimated at €1,500 to €3,000 instead of €800 before the Local Court).

For a buyer, if you purchase a property in Nîmes and the seller sues you for nullity of the sale before the High Court when the price is less than €10,000 (Local Court jurisdiction), raise the lack of jurisdiction immediately. Otherwise, you risk a longer and more costly procedure.

For real estate professionals, be vigilant: in a dispute between co-owners or with a management company, jurisdiction may vary depending on the nature of the claim (service charges, works, etc.). Do not neglect this procedural point.

Four Tips to Avoid This Type of Dispute

• Check jurisdiction upon receipt of the claim form: Consult a lawyer immediately to determine whether the court seised has jurisdiction. Do not draft any pleadings on the merits before resolving this issue.
• Raise the lack of jurisdiction in a separate document: The objection of lack of jurisdiction must be presented in a distinct document (interim application pleadings) before any defence on the merits. Clearly state the court you believe has jurisdiction.
• Respect deadlines: The objection must be raised before the first hearing on the merits, generally within one month of service of the claim. After this deadline, it is too late.
• When in doubt, raise the objection as a precaution: Even if you are not certain of the lack of jurisdiction, raise it to preserve your rights. You can always waive it later.

Further Analysis: Related Case Law and Developments

This 1967 decision is part of a consistent line of authority. The Court of Cassation had already affirmed this in a judgment of 12 May 1965 (Bull. civ. I, no. 314): the objection of lack of jurisdiction must be raised in limine litis (at the outset of the proceedings). Since then, the new Code of Civil Procedure (Article 75) has adopted the same principle: 'The objection of lack of jurisdiction must be raised before any defence on the merits or plea of inadmissibility.'

Case law has evolved to specify that this rule applies even if the lack of jurisdiction is a matter of public policy (Cass. ass. plén., 14 February 1986, no. 84-15.455). However, an exception exists: if the dispute falls within the exclusive jurisdiction of the Court of Cassation or an administrative court, the objection may be raised at any stage (Cass. civ. 2e, 10 September 2015, no. 14-20.200). But in practice, for common property disputes (High Court, Local Court, Administrative Court), the rule remains strict.

The current trend is towards procedural rigour: judges firmly sanction failures. It is therefore essential not to neglect this step.

In Practice: What to Do

FAQ:

1. When to raise the objection of lack of jurisdiction? At the first response to the claim, before any discussion on the merits. In practice, within 15 days to 1 month of service of the claim.
2. What happens if I do not raise it? You are precluded: the court remains competent even if it was not initially.
3. Can I raise it on appeal? No, unless the lack of jurisdiction is of absolute public policy (rare). Generally, it is too late.
4. What is the cost of an objection of lack of jurisdiction? Lawyer's fees for an interim application can range from €500 to €1,500, but this may save you much higher costs.
5. What if I am sued before a court without jurisdiction? Contact a lawyer immediately. Do not respond on the merits before raising the lack of jurisdiction.

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