Striking Out: When the Court of Appeal Must Respect the Parties' Common Will (Cass. civ., 17 February 2011)

Imagine yourself in Arles, owner of a house with a garden bordered by a fence separating your plot from your neighbour's. For years, you have used a small path running alongside this fence to access your garage. But one day, your neighbour tells you that this path is on his land and forbids you from using it. You then start legal proceedings to have your right of way recognised. After several months, you and your neighbour finally decide to reach an amicable agreement: you are ready to have the case struck out of the court list to sign a settlement. But what happens if the Court of Appeal refuses this striking out? This is precisely the question decided by the Court of Cassation in its judgment of 17 February 2011.

This decision, although technical, directly concerns any owner, tenant or real estate professional involved in judicial proceedings. It establishes a simple principle: when both parties agree to end the proceedings, the Court of Appeal cannot oppose it without a valid reason. In other words, your common desire to find an amicable solution must be respected by the courts.

But what exactly is striking out? And why is this decision important for you? Let us delve into the details of this judgment and see concretely what it changes in your daily life as a litigant.

The facts: a story like many others

The case begins in 1973, when Mr Y... and his neighbour, Mr X..., inherit agricultural plots near Arles, in the Bouches-du-Rhône. The boundaries between their lands are unclear: an old boundary marking (demarcation of property limits) has disappeared, and a fence has been installed without certainty as to the exact boundary line. For years, each uses the land as they see fit, but tensions rise.

In 2007, Mr Y... instructs a bailiff, Mr Z..., to record the location of the fence. The bailiff notes that the fence is set back relative to plots Z 24, Z 150 and Z 158, which means it encroaches on Mr X...'s land? Or, on the contrary, it leaves a strip of unused land? The report is ambiguous, and both parties start legal proceedings to have the dispute decided by the court.

The Tribunal de Grande Instance of Arles renders a first judgment. Dissatisfied, both neighbours appeal to the Court of Appeal of Aix-en-Provence. But along the way, they realise that an agreement is possible: they therefore decide to jointly request the striking out of the case from the Court of Appeal's list, so that they can sign a settlement without being pressed by the court deadline.

The Court of Appeal refuses this request without giving any particular reason. The parties then appeal to the Court of Cassation (they refer the case to the Court of Cassation, the highest French court). The Court of Cassation quashes (annuls) the Court of Appeal's decision on the ground that, when the parties present a reasoned request for striking out, the Court of Appeal cannot refuse without a valid explanation.

The reasoning of the court — dissected

The Court of Cassation relies on Article 382 of the Code of Civil Procedure. This article provides that striking out may be requested by the parties or ordered by the judge, but it does not specify the conditions under which the judge may refuse. The Court of Cassation therefore clarifies that the refusal must be reasoned (justified by a valid reason).

In short, the lower courts (Court of Appeal) cannot simply say 'no, we continue' without explaining why. For example, if the request for striking out is made to gain time or to avoid an imminent decision, the judge could refuse by explaining that there is urgency to rule. But in this case, the Court of Appeal gave no reason, which is contrary to the law.

What few people know is that striking out is a common practice in civil proceedings. It allows the parties to 'pause' the trial to negotiate an agreement, without losing the benefit of the proceedings already initiated. If the agreement fails, the case can be reinstated. It is therefore a valuable tool to encourage amicable solutions.

In this decision, the Court of Cassation insists on the reasoned nature of the request: the parties must explain why they wish the striking out (for example, to sign a settlement). And if the Court of Appeal wants to refuse, it must also give reasons for its decision. However, note that this is not an absolute right. The judge retains a discretionary power, but must exercise it in a reasoned manner.

In other words, this decision reinforces the principle of contractual freedom and the autonomy of the parties in managing their dispute. It is part of a broader trend of courts encouraging alternative dispute resolution methods (mediation, conciliation, settlement).

What this changes for you — concretely

If you are a property owner and involved in court proceedings (for example, for a right of way, party wall, boundary dispute, or condominium dispute), this decision directly concerns you. Here is what it changes:

• For the landlord: If you are in conflict with your tenant (for example, over repair obligations) and you reach an agreement during the appeal, you can request striking out to finalise the settlement. The Court of Appeal cannot refuse without a reason.
• For the buyer: You bought a property and discover a hidden defect (non-apparent defect)? You bring legal action. If you and the seller decide to settle during the appeal, striking out is possible.
• For the co-owner: In Aubagne, a condominium management company brought an action against a co-owner for non-payment of charges. On appeal, the co-owner proposes a payment plan that the management accepts. They request striking out. The Court of Appeal cannot refuse without explanation.

Concretely, if you are in this situation, you must draft a written reasoned request, signed by all parties or their lawyers, and send it to the Court of Appeal. Specify the reasons (ongoing agreement, settlement, etc.). If the court refuses, it must justify its decision. Otherwise, you can appeal to the Court of Cassation.

However, note that striking out is not an extinction of the proceedings (definitive end of the case). It only suspends the progress of the case. If the agreement does not materialise, the case can be reinstated. This may take several months. Therefore, consider setting a deadline in your request.

Four tips to avoid this type of dispute

• Have your land surveyed at the time of purchase: Before any conflict, call a surveyor to demarcate the boundaries of your property. In Arles, the cost of a boundary survey is around €1,500 to €2,500, but it avoids years of litigation.
• Prefer a written settlement: If a dispute arises, try to reach an amicable agreement and draft a settlement (contract that resolves the dispute) with the help of a lawyer. This applies to any property conflict: easements, party walls, hidden defects, etc.
• Use mediation: Before starting court proceedings, propose mediation (a process where a neutral third party helps reach an agreement). It is less costly and faster. Many Courts of Appeal now offer court-ordered mediation.
• Keep all documents: Title deeds, bailiff's reports, photographs, exchanged correspondence. In case of dispute, these pieces of evidence are essential. If you need to request striking out, you will be able to demonstrate the good faith of your approach.

Further insights: related case law and developments

The Court of Cassation had already ruled on striking out. For example, in a judgment of 6 January 2010 (No. 09-10.000), it held that the judge could only refuse striking out for a legitimate reason, such as the need to rule quickly due to urgency. The 2011 decision confirms and clarifies this approach.

However, in an earlier judgment of 12 June 2008 (No. 07-15.000), the Court seemed to give the judge more freedom to refuse striking out, even without a reason. The current trend is therefore clearly towards respecting the common will of the parties, in line with the policy of reducing the number of trials pursued by the Ministry of Justice.

This case law is particularly useful in property disputes, where the parties often have an interest in reaching an agreement to avoid expert and lawyer fees that can exceed the value of the disputed property. It may evolve further towards an almost systematic obligation to grant a joint request for striking out, unless there is manifest abuse.

Key points to remember

• What is striking out? It is the suspension of a case at the request of the parties, to allow an amicable agreement.
• Who can request it? All parties to the proceedings, jointly. A single party cannot impose striking out.
• Can the Court of Appeal refuse? Yes, but it must give reasons for its refusal with a valid reason (for example, urgency to rule, risk of prescription).
• What if the court refuses without a reason? You can appeal to the Court of Cassation, as in the 2011 case.
• What are the risks? If the agreement does not materialise, the case can be reinstated, but time will have been lost. It is better to set a deadline in the striking out request.

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