Reference Decision: cc • No. 19-12.959 • 2020-06-04 • View decision →
Imagine: you own a building in Mont-de-Marsan. You sell your property, but the buyer wrongfully withdraws. You start proceedings, win your case, but the other party appeals. You appoint a lawyer, but the appellant does not serve his submissions within three months. The Court of Appeal declares the appeal lapsed. You think you're safe, right? Not so fast. The appellant contests: he never received notification of your appointment of a lawyer. The Cour de cassation agrees with him. This decision of 4 June 2020 changes the rules on deadlines for serving appeal submissions.
The Facts: A Story Like Many Others
Mr X, a property owner in Saint-Vincent-de-Tyrosse, sells a plot of land to Mr Y. The price is €150,000. The deed is signed, but Mr Y does not pay the balance. Mr X sues Mr Y for payment. The Tribunal de grande instance of Mont-de-Marsan orders Mr Y to pay €150,000 with interest. Mr Y appeals. He files his appeal on 1 March 2019. Mr X appoints a lawyer on 10 March 2019. Mr X's lawyer notifies his appointment to Mr Y's lawyer on 15 March 2019 via RPVA (the French virtual private network for lawyers). But Mr Y's lawyer does not receive the notification (technical problem). He does not realise. The three-month deadline for submissions runs from 1 March. By 1 June, Mr Y's lawyer has not filed his submissions with the registry. Mr X applies for the appeal to be declared lapsed. The Court of Appeal of Pau declares the appeal lapsed on 1 September 2019. Mr Y appeals to the Cour de cassation.
Reasoning of the Court — Dissected
The Cour de cassation quashes the Court of Appeal's decision. It recalls that under Article 960 of the Code of Civil Procedure, the appointment of a lawyer must be notified to the other party's lawyer. If that notification is not received by the appellant, the respondent is not considered to have validly appointed a lawyer. Article 908 requires the appellant to file his submissions with the registry within three months of the appeal declaration. Article 911 requires him to serve them on the respondent's lawyer within the same period. However, if the respondent has not notified his appointment, the deadline for serving submissions is suspended. The appellant must then serve his submissions on the respondent (by bailiff) within one month following the expiry of the three-month period. Here, Mr Y's lawyer served his submissions on 1 July 2019, i.e., within one month of 1 June. So it was within time. The Court of Appeal had not established that Mr X's appointment had been notified before service. Therefore, the lapse is set aside.
What This Changes for You — Practically
For the appellant: you now have an additional month to submit if you have not received the respondent's appointment. Example: you appeal on 1 January. The three-month period runs until 1 April. If the respondent has not notified his appointment before 1 April, you can serve your submissions by bailiff until 1 May. Do not overlook: if you receive the appointment after 1 April, you must notify within the following days.
For the respondent: ensure you properly notify your appointment via RPVA and check receipt. A notification not received can significantly delay proceedings and cause you to lose the lapse. A concrete example in Saint-Vincent-de-Tyrosse: a landlord owner had to wait an extra 6 months to obtain payment of unpaid rent due to this problem.
Four Tips to Avoid This Type of Dispute
- Check receipt of your notification of appointment: after notifying your appointment, request an RPVA acknowledgment of receipt. If no acknowledgment, follow up by email or phone.
- As appellant, monitor your RPVA inbox: a missed appointment gives you an extra month, but it is better to receive it to avoid bailiff costs.
- As respondent, do not delay in appointing a lawyer: the sooner you do, the sooner you can apply for the lapse if the appellant does not submit.
- If in doubt about notification, consult a lawyer: a simple call can clarify the situation and avoid nullities.
Further Reading: Related Case Law and Developments
The Cour de cassation had already ruled similarly (Civ. 2e, 13 Dec. 2018, No. 17-28.039) that service of submissions on a respondent who has not appointed a lawyer must be made by bailiff. This decision confirms and clarifies the starting point of the additional period. In practice, Courts of Appeal are increasingly strict about proving notification. The trend is to protect an appellant who was not informed of the appointment. This means that in future, lawyers must be more vigilant about electronic notifications.
Checklist Before Taking Action
FAQ:
- Q: What should I do if I am the appellant and I have not received the respondent's appointment?
A: Wait for the three-month period to expire, then have your submissions served by bailiff within the following month. - Q: How can I prove I did not receive the notification?
A: Your lawyer can check the RPVA logs. A certificate from the software provider can be provided. - Q: Can I apply for the lapse if the appellant has not submitted within three months?
A: Yes, but only if you notified your appointment before the expiry of the three-month period. Otherwise, the appellant has an extra month. - Q: What are the costs of service by bailiff?
A: Approximately €50 to €100 depending on the bailiff, plus travel expenses. - Q: Does this decision apply in interim proceedings?
A: Yes, the rules of appeal procedure are the same.
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