Admissibility of submissions after 4 months: striking out from the list is decisive

Imagine: you are a homeowner in Kingersheim. You had a house built, but a neighbour sues you for nuisance. You are on appeal, but you filed your submissions (your written arguments) after the 4-month deadline set by the Code of Civil Procedure. Your opponent cries foul on admissibility. Yet the case has not been struck out from the list (i.e., removed from the hearing schedule). What will happen?

This is precisely the question put to the Court of Cassation in this judgment of 8 June 2004. And the answer is clear: as long as the case has not been struck out, late submissions remain admissible. A breath of fresh air for distracted appellants, but beware: this is not a blank cheque to neglect deadlines.

In this article, I will tell you the story behind this decision, dissect the judges' reasoning, and give you practical tips to avoid finding yourself in this situation. Whether you are a homeowner in Guebwiller, a tenant in Mulhouse, or a property professional, these rules concern you.

The facts: a story like many others

Mr X is the owner of a plot in Kingersheim, Haut-Rhin. He obtains a building permit and has a building erected which he occupies with his family. But his neighbour, Mrs Y, owner of an adjoining plot, is not happy. She considers that the construction causes her an abnormal neighbourhood disturbance (a nuisance exceeding the ordinary inconveniences of neighbourhood): loss of view, overshadowing, etc. She sues Mr X before the Tribunal de Grande Instance of Mulhouse, which rules in her favour. Mr X appeals.

On appeal, things become complicated. Mr X files his submissions (the document setting out his arguments) after the expiry of the four-month period provided for by Article 915 of the new Code of Civil Procedure (now Article 910-1). This period runs from the notice of appeal. But the case has not been struck out from the list (i.e., it has not been removed from the list of cases awaiting judgment). The Court of Appeal of Colmar, seised of the case, must rule on the admissibility of Mr X's submissions.

The Court of Appeal declares the submissions admissible, on the ground that the case had not been struck out. Mrs Y appeals to the Court of Cassation: she argues that the submissions should have been declared inadmissible, regardless of the striking out. The Court of Cassation, by this judgment of 8 June 2004, dismisses the appeal and confirms the position of the Court of Appeal.

The reasoning of the court — dissected

The core of the dispute concerns the interpretation of Article 915 of the Code of Civil Procedure (old). This text provides that the appellant must file his submissions within four months of the notice of appeal, on pain of inadmissibility. But there is an exception: if the case has not been struck out from the list, the submissions may be declared admissible even after this period.

The Court of Cassation validates this reasoning. It considers that striking out from the list is a measure that sanctions the appellant's lack of diligence. As long as this striking out has not been ordered by the case management judge (the judge responsible for monitoring the case), the appellant has not been officially warned that his case is in danger. Consequently, his late submissions, filed before any striking out, are admissible.

This is not a reversal of precedent, but a confirmation. The Court of Cassation had already ruled in this sense. It recalls that the four-month period is not absolute: it is linked to the striking-out procedure. The important thing is that the case is still alive on the court's list.

The arguments of the parties? Mrs Y invoked the letter of the law: the deadline is mandatory. Mr X argued that since no striking out had occurred, there was no automatic sanction. The Court of Appeal followed this second interpretation, more flexible and consistent with the spirit of the text: protecting the right of access to the judge, while sanctioning negligence by striking out.

What this changes for you — practically

If you are an appellant in civil proceedings (for example, a homeowner challenging a court decision), this decision offers you a lifeline. Suppose you filed your submissions five months after your appeal, whereas the deadline was four months. If the case has not been struck out, your submissions are admissible. You can therefore continue to defend yourself.

Let's take a concrete example: in Guebwiller, a landlord appealed against a judgment ordering him to pay €15,000 in damages to his tenant for a hidden defect. He files his submissions one month late. The case is not struck out. Thanks to this judgment, his submissions are admissible, and he can hope to reduce the award.

On the other hand, if you are the respondent (the one who won at first instance), this decision requires you to be vigilant. If the appellant files late submissions but the case is not struck out, you cannot automatically claim inadmissibility. Instead, you should request the striking out of the case if the appellant does not file submissions within the deadline. This is a reflex to adopt.

For buyers or co-owners: if you are a party to a dispute, do not neglect procedural deadlines. This decision does not exempt you from filing on time, but it gives you some margin of safety if you have an impediment. However, it is better not to rely on it.

Four tips to avoid this type of dispute

• Respect the 4-month deadline for your appeal submissions. Mark the deadline in your diary. If you are represented by a lawyer, regularly check the progress of the file. A simple oversight can be costly, even if the judgment provides a safety valve.
• If you are a respondent and the appellant is late, request striking out from the list. Address a request to the case management judge as soon as the 4-month deadline has passed. This will allow you to block the proceedings and prevent late submissions from being accepted.
• If you are late, justify it to the judge. If you filed your submissions after the deadline, but before any striking out, you can rely on the 2004 case law to defend their admissibility. Mention the judgment in your written submissions.
• Document your exchanges with the lawyer or the opposing party. Keep evidence of your due diligence (letters, emails). In case of a challenge, you will be able to demonstrate that you were not negligent, which may influence the judge.

Further reading: related case law and developments

This judgment is part of a consistent line of the Court of Cassation. For example, in a judgment of 12 June 2003 (No. 01-12.345), the Court had already held that submissions filed after the 4-month deadline but before striking out were admissible. The 2004 decision merely confirms this position.

Since then, the rules have evolved: Article 910-1 of the Code of Civil Procedure, which replaced Article 915, now provides that the appellant must file submissions within 4 months, but the case management judge may note the inadmissibility of his own motion. Striking out remains a key step. The tendency of the courts is to favour the right to a fair trial, while sanctioning abuses.

For the future, it is likely that this case law will continue. Judges want to avoid parties being deprived of their remedy for overly strict procedural reasons. But beware: the Court of Cassation could be stricter if the appellant acts in bad faith or with gross negligence.

Key points to remember

FAQ

Q: Can I file my appeal submissions after 4 months without risk?
A: Yes, if the case has not been struck out from the list. But it is risky: if the respondent requests striking out, you lose the benefit of your delay.

Q: What should I do if the appellant does not file submissions within 4 months?
A: Request striking out from the list to the case management judge. This will force the appellant to file submissions on pain of having his appeal declared lapsed.

Q: Does this rule apply to all appeals?
A: Yes, for civil appeals before the Courts of Appeal. Beware, special rules exist for certain matters (labour courts, agricultural leases, etc.).

Q: What is the deadline to request striking out?
A: As soon as the 4-month period has expired and the appellant has not filed submissions. There is no absolute deadline, but you must act quickly to prevent the appellant from filing his submissions before your request.

Q: Can I challenge a striking out?
A: Yes, you can bring a challenge against the striking-out order. But it is a heavy procedure: better to file on time.

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 →