After a claim has been commenced, what written documents must (or can) the parties submit and what is the usual timetable?
Litigation (2nd edition)
After having received a statement of claim by the plaintiff, the competent court serves the claim on the defendant together with an order to file a statement of defense within four weeks after service (“Klagebeantwortung”). If the defendant misses this four-week period, the plaintiff may request a default judgment. In proceedings at district-court level, a simplified procedure applies and a statement of defense is not required.
As a next step before the oral hearing(s), both parties have the possibility to submit further written statements in order to support their position until one week before the preparatory hearing takes place. Thereafter, the court may order the parties to submit further statements or to provide additional information if necessary.
As already outlined under question 11 above, a simplified procedure applies with respect to monetary claims up to EUR 75,000 (Mahnverfahren). The plaintiff simply has to fill out a standardized form (as a statement of claim), on the basis of which the court then issues a payment order. The defendant has the choice to either pay the claimed amount or to raise an objection within four weeks of service of the payment order. Objections against a payment order exceeding EUR 15,000 need to be in writing and must contain the elements of a statement of defense. In proceedings with an amount in dispute not exceeding EUR 15,000 (district-court level), an objection requires no reasoning and can be made orally before the court. If a valid objection is raised, the payment order will be set aside and an ordinary proceeding will be initiated, which means that a preparatory hearing will be scheduled. However, if the defendant does not raise a valid objection within due time, the payment order becomes binding and enforceable (like a final judgment).
After a claim has been commenced, the defendant submits a written answer. After the submission of the answer, usually both parties submit, in turn, written briefs and documentary evidence to support their arguments.
After the court finds that both parties have submitted their claims adequately and the issues in the dispute have been adequately sorted out, then normally the examination of witnesses and the parties follows. Before any such examination, the party applying for such an examination must submit written statements of the persons to be examined.
After the examination of witness and parties, the parties usually submit their final briefs.
Overall, the timetable differs depending on the complexity and nature of the case. However, generally speaking, one hearing date is scheduled every one or two months, and the court instructs the parties to submit their briefs one week before each hearing date.
The Parties may exchange submissions to support their arguments within the time-table set by the Court. Usually each party is granted up to 3 months to file writings and supporting evidence to reply to the other party’s last submissions.
After a claim has been commenced, the defendant shall submit its answer to the claim within 15 days from the date receiving plaintiff’s claim (30 days will be applied if defendant’s domicile is outside China). Failure to submit an answer will not affect the process of the trial.
Meanwhile, where a party in litigation objects to the court’s jurisdiction, such objection shall be raised during the timeframe for submission of answer, which is within 15 days from the date receiving plaintiff’s claim (30 days will be applied if defendant’s domicile is outside China). Where the parties do not raise any objection to jurisdiction and answer to the claims, the parties shall be deemed to acknowledge that the court which accepts the case has jurisdiction, except where the rules on grade jurisdiction and exclusive jurisdiction are violated.
The claim is served to the defendant by the court. The defendant must submit his statement of defence within 25 days after the receipt of the claim, submitting this statement being mandatory.
The claimant can also to submit the response to the statement of defence within 10 days after the receipt of the statement of defence.
The defendant must file a memorandum of appearance stating his intention to defend the claim within 10 days of service of the writ of summons unless a longer period is stipulated in a court order (such as an order permitting the service of the claim out of the jurisdiction). If the writ of summons is generally indorsed (i.e. if it does not include a Statement of Claim) the plaintiff must proceed to file a Statement of Claim within 10 days from the date of filing of the defendant’s memorandum of appearance. The defendant must file a Defence (whereby he/she may also set up a counterclaim) within 14 days from the date of service of the writ of summons (where the statement of claim is included in the writ of summons) or from the date of filing of the Statement of Claim (where the writ of summons is generally indorsed). Once a Defence is filed and served on the plaintiff, the plaintiff may file a Reply (and, where a counterclaim is brought, a Defence to the Counterclaim) within 7 days from the date of service of the Reply. No subsequent pleadings may be filed unless the court orders otherwise. The prescribed periods for filing pleadings are very frequently extended by the court.
Once the pleadings are deemed to be closed, the plaintiff (as well as the defendant in cases where a counterclaim is brought) must within 90 days issue and serve a Summons for Directions setting out the matters (e.g. disclosure and discovery of documents, provision of further and better particulars in respect of any pleading, amendment of any pleading) in respect of which he/she wishes the court to give directions before a trial date is set. The defendant must also file a corresponding notice in prescribed form within 30 days of being served with the Summons for Directions. At the hearing of the Summons for Directions, the court gives such directions as it considers fit and orders the parties to file a list of the witnesses they propose to call at trial and provide a summary of the evidence to be given by each witness. Upon providing directions the court also sets the time frames for compliance with the relevant directions. Once the court’s directions are complied with and lists of witnesses and summaries of evidence are submitted by the parties, the court proceeds to set a trial date.
After legal proceedings are commenced by the plaintiff’s submission of the writ of summons, the court directs the defendant to file a statement of defence. This exchange of documents is the basis for the further process of the case.
Hereafter, the court will convene the parties to a preparatory meeting. At the preparatory hearing, the court must also – after consultation with the parties – determine the further process, including the time table, if possible.
Further submissions can be demanded by the court, including a statement of reply and statement of rejoinder. If one of the parties moves for a partial award on a separate objection, the parties can be ordered to submit pleadings on the specific question. The courts can also institute a process on the question of production of documents or regarding obtaining expert evidence. The court usually orders the parties to submit a case summary prior to the final hearing and in some cases the production of bundles containing the exhibits of the case as well as relevant legal material.
Legal proceedings are normally completed within six to eighteen months, but it varies depending on the particular circumstances of the case. There is no official maximum.
Alongside the case writ, the plaintiff may submit additional documentation, including a memorandum explaining the disputed claim, as well as originals of any supporting documents. Once the defendant is served, the defendant usually submits a defence memo, alongside all of its supporting documents. The timeframe varies depending on the court and its workload. In a civil and commercial court, the timeframe for a case would be from one to three years, while in economic courts may take from one to two years, during which the parties may be asked to submit additional documentation. If the documentation submitted is in a foreign language, then the timeframe will prolong as such documents must be officially translated by the court.
After receipt of a statement of claim, a respondent is obliged to submit a statement of defence. The Commercial Procedural Code does not specify a deadline for this, but quit often a time limit is set by the judge.
In practice, after initial exchange of a statement of claim and a statement of defence parties often provide further written submissions clarifying their positions, either at the request of the judge or on their own initiative.
In all proceedings, plaintiffs must file their complaint with all the documents that support their claim. Same rule applies to the defendants, that is, when they file their reply or counterclaim, all documents available must be presented.
However, if the parties don’t have the documents at their disposal, they must announce them to the judge and demonstrate an intent to obtain them. In light of that, the judge will decide whether issuing a judicial order to obtain the documents, or if it is possible, to grant the interested party an extension to submit such documents.
There are certain exceptions that allow the parties to submit documents once the trial has been commenced, such as:
- In case there is evidence not known at the time of filing.
- When the plaintiff files its reply to the answer to the complaint.
- In response to a counterclaim, if any.
Notwithstanding the foregoing, all documents must be submitted to Court, before the day the evidence phase of the trial concludes, and before the parties move for closing arguments.
As a general rule, parties can submit any kind of documents to the court at any time of the proceedings, subject to the general rules of preclusion in sec. 296 et seq. ZPO. According to sec. 131 (1) ZPO, the parties shall submit as exhibits all documents to which they refer in the written submissions. Furthermore, parties are generally required to file their submissions in due time in order to advance the proceedings (sec. 282 ZPO).
Prior to the oral hearing, the parties must file any preparatory written pleading setting out new facts in such due time that it may be served upon the other party at least one week prior to the hearing. The party responding to such new facts must, in turn, submit its brief in such due time that it can be served at least three days before the hearing. In practice, counsel usually resort to attorney-to-attorney service in order to comply with these procedural deadlines.
A claim is commenced when the plaintiff has filed a writ of summons and statement of claim (outlining his case in detail). The plaintiff must serve the writ and statement of claim on the defendant, who then has 14 days to file an acknowledgement of service providing notice that he intends to defend the claim. If the plaintiff has not already endorsed a statement of claim on the writ of summons, he must serve a statement of claim separately on the defendant within 14 days after the defendant has acknowledged service. To defend the claim, the defendant must file a defence (and, if applicable, a counterclaim) within 28 days of acknowledgment of service or service of the statement of claim (whichever is later). The reply must then be served within 28 days after service of the defence.
When the cause is tabled before the Royal Court, the defendant must indicate whether it intends to defend the claim. The defendant then has 28 days to file its defence, although this deadline can be extended by up to 3 months by agreement between the parties or longer by order of the court.
The subsequent timetable is relatively flexible and dependant on the complexity of the claim and the commitments of the court. The relevant stages are usually:
- experts reports;
- witness statements;
- pre-trial arrangements such as trial timetable and format; and
In the case of suits, once a plaint is instituted by the plaintiff, along with all the supporting documents, the defendant is required to file the written statement (and counter-claim, if any), along with the relevant documents within thirty days from the date of service of summons, which is further extendable by the court to ninety days on sufficient cause being shown.
The court may also permit the plaintiff to file a rejoinder to the written statement and will thereafter, proceed to frame issues. The parties are then required to file their respective affidavits of admission-denial of documents, followed by the filing of their respective affidavits of evidence in chief supporting the suit/defence. The parties have a right to cross-examine the witnesses of the other party. In some cases, the parties may also be permitted to file written submissions/arguments for the convenience of the court.
In terms of timelines, litigation in India is time consuming and it could take anything between three to five years for a suit to be finally heard and disposed of. However, interim relief may be available within a few days of institution of the suit.
Recently, the Commercial Courts Act has also been enacted with a view to ensure expeditious disposal of commercial cases. The said Act provides that a case management hearing shall be held within four weeks from the filing of affidavit of admission/denial of documents. Moreover, it also provides for the Court to ensure that arguments in the matter are completed within a period of six months and the judgment is then pronounced within ninety days of the conclusion of arguments between parties. It is, however, relevant to note that the said Act is a fairly nascent development and it remains to be seen how well it is implemented in the coming years.
In the case of arbitrations, the procedural timetable for the filing of a statement of claim and subsequent pleadings is determined either by the rules of the concerned arbitral institution in case of institutional arbitrations or by the arbitral tribunal in case of ad hoc arbitrations.
Although Section 19 of the Arbitration and Conciliation Act 1996 specifies that the arbitral tribunal shall not be bound by the Code, courts in India have held that principles analogous to the Code should be followed in arbitral proceedings to ensure basic principles of natural justice and fair trial.
The timelines for filing the pleadings in arbitrations are usually strict in view of the recent amendments to the Arbitration Act, which require that the arbitral tribunal shall make its award within a period of one year from the commencement of arbitration proceedings. Such timeline can also be mutually extended by the parties by a further period of six months, however, the permission of the Court is required to be obtained in case any further extensions are required.
Further, as stated earlier, the parties to an arbitration agreement may also agree to have their disputes resolved by the fast track procedure in accordance with Section 29B of the Arbitration Act, wherein the dispute may be decided solely on the basis of written pleadings, documents and submissions filed by the parties without any oral hearing.
Isle of Man
A defendant can reply to a claim via an acknowledgment of service and then by filing a defence. In proceedings under the chancery procedure normally the only pleading will be the claim form (see rule 5.19). In other proceedings there will be a pleading setting out the defence and any counterclaim and then a reply and where appropriate a defence to counterclaim.
Under rule 6.26 there is 14 days after service of the particulars of claim to file a defence or if the defendant files an acknowledgment of service 28 days. The parties may agree an extension for up to 28 days but any agreement must be notified to the court in writing.
Once the pleadings are closed and disclosure has taken place the parties would usually exchange witness evidence and file and serve concise skeleton arguments, authorities and paginated bundles including draft orders.
Following the submission of the claim by the plaintiff and the statement of appearance by the defendant, at the first hearing the judge – if required to do so – grants the following peremptory subsequent terms to the parties, as provided by Article 183 of the Italian Code of Civil Procedure:
- a 30-day term for the filing of briefs limited to the clarification or modification of the claims, exceptions and conclusions already proposed;
- a further 30-day term to reply to the above, to raise the consequent objections, to indicate the means of proof and to file documents;
- a further 20-day term to offer the sole rebuttal evidence.
All cases require the filing of a complaint (sometimes denominated as a petition), which states the ultimate facts on which the claimant relies for its claim. Generally, the defendant must file its answer within 15 days from receipt of the summons and the complaint; otherwise, the defendant will be declared in default and cannot participate in trial. The claimant may file a reply within 10 days from receipt of the defendant’s answer.
Five days before pre-trial, the parties are required to submit their respective pre-trial briefs. The pre-trial briefs shall contain the summary of the parties’ claims and defences, the issues of the case, the parties’ evidence, and the affidavits of their witnesses.
After trial, the parties may be required to submit memoranda summarizing their arguments and evidence, typically within 30 days from notice of the court’s order.
Parties must submit all documents they consider crucial to their plea to court taking into account that the confidentiality of certain documents must always be preserved.
Usually, documents must be submitted with the allegation of the facts they intend to prove. However, it may be possible to submit them to court up to 20 days before the final hearing.
In certain situations, the court may allow the parties to submit documents at a later stage of the proceeding if it is shown that they could not be presented earlier or if the submission becomes necessary due to the course of the proceedings.
Once a petition is filed and if the process conditions are met, the court serves the action on the defendant for defendant’s statement of defense to the action. The plaintiff may then respond to the defendant’s statement of defense (the so-called replica). The defendant may then respond to the plaintiff’s response (the so-called duplica).
Those statements of the parties should provide factual statements important for the decision-making on the merits and designate evidence to prove those facts. The court might not regard later statements and evidence. Where the nature of evidence allows, evidence should be enclosed with the file – e.g. documentary evidence or expert opinions.
Power of attorney is a mandatory annex where a defendant is represented by a legal counsel.
The timetable depends on the workload of the court and complexity of the dispute. A commercial dispute can therefore continue for several years.
In the course of the proceedings, the court usually gives the parties a period of 15 days for their procedural actions (e.g. for a defendant’s statement and plaintiff’s response - replica and duplica). However, the court might take a longer time to process those actions due to overload.
The main stages in civil proceedings in the first instance are, in general:
- preparatory phase of exchanging written statements, i.e. application for summons, statement of defence and sometimes additional submission(s);
- a preparatory meeting where the court seeks to sort out any uncertainties in the parties’ respective positions and where a timetable is often set for the further proceedings;
- continued exchange of written statements including statements of evidence if these have not already been submitted and;
- the final hearing of the case. There is no generally applicable timeframe but the Swedish code of Judicial Procedure requires the court to set a timetable for the case and this is often done at the preparatory meeting, taking into account the views of the parties in this regard.
The claimant must file and serve a claim form and particulars of claim. Particulars of claim can be filed and served together with the claim form or within 14 days of the claim form having been served. Once the defendant has been served, it has 14 days to file a defence (or 28 days, if it chooses to file an acknowledgement of service first). These might (but do not have to) be followed by a reply from the claimant, if they think that there are further relevant points to plead. Both parties must also file directions questionnaires which help the court manage cases more effectively (by, for example, deciding on the allocation of the case to one of the procedural tracks).
Before commercial courts: the parties are entitled to submit their pleadings and supporting documents to prove their claims, within the periods stated in the case management schedule. The case management phase before commercial courts typically last up to 2 months. Once the case is referred to the court, the parties may not submit any new documents unless they prove their inability to submit these previously, or if new developments occur in the case requiring such submission to be made, or if the court allows such submission.
Before the BCDR: the parties are entitled to submit their pleadings and supporting documents to prove their claims, within the deadlines specified in the case management schedule. The case management phase in the BCDR should not exceed 4 months (as per Article 37 of the BCDR Regulations) which may be extended for an additional period of 4 months upon a request by the case manager to the chief executive officer of the BCDR. No new arguments, pleadings or evidences may be submitted after the matter is referred to the BCDR Tribunal, unless such submission is permissible under Article 49 of the BCDR Regulations.
The defendant does not need to submit a defense brief after receiving the complaint. Defendants respond commercial complaints by simply attending the hearings through their attorneys, and after final conclusions of law are submitted the judge authorizes the filing of briefs summarizing each parties’ positions. In principle, the plaintiff shall attach its evidence jointly with the complaint. However, the law does not sanction failure to comply with this obligation, and therefore parties are free to submit the evidence they choose during the course of proceedings with the sole condition that the other party is previously advised within a reasonable timeframe of the filing of such evidence, to ensure that due process is preserved. This means that there is no regulation that governs the moment when the evidence must be exchanged, so it depends on subjective, unpredictable methods such as the patience and criteria of the judge in charge.
Once a claim is commenced, the first step is the first hearing, where the court will check the identity of the disputing parties and determine the mediator for court-annexed mediation.
The subsequent steps are detailed in the illustration below:
Each of the box above represents a hearing scheduled for the stated agenda. Practically speaking, each hearing is usually 2 weeks apart. Consequently, in general, the first hearing until the issuance of a decision will take approximately 5 months.
The documents to be submitted in a civil court proceeding are:
a. a claim (from the plaintiff);
b. a demurrer and response (from the defendant);
c. a reply (from the plaintiff);
d. a rejoinder (from the defendant);
e. an evidence/witness’ statement/expert’s opinion (from the plaintiff);
f. anevidence/witness’ statement/expert’s opinion (from the defendant); and
g. a concluding statement (from both parties).
The statement of claim (if have not already endorsed in the writ) must be filed in court before the expiration of fourteen (14) days after the Defendant enters an appearance. [See Order 18 Rule 1 of the ROC]
Thereafter, the Defendant has fourteen (14) days from the time limited for appearing or after the statement of claim is served on him, whichever is later, to file and serve his statement of defence. [See Order 18 Rule 2 of the ROC]
Unless it relates to matters which shall be specifically pleaded (wherein the Plaintiff has fourteen (14) days to serve his Reply to the Statement of Defence), a Reply from the Plaintiff to the Defendant’s Statement of Defence is discretionary. [See Order 18 Rules 3(1) and (4) of ROC] If there is no Reply to a Defence, there is an implied joinder of issue on that Defence. [See Order 18 Rule 14 of the ROC]
However, if the Defendant has pleaded a counterclaim against the Plaintiff and the Plaintiff wishes to defend it, the Plaintiff shall serve his Defence to the Counterclaim within fourteen (14) days from the service of the Counterclaim on him. [See Order 18 Rule 4 of the ROC]
After the close of pleadings, the court will usually direct for exchange and filing of bundle of documents prior to the exchange and filing of witness statements. There is no specified written timeline in doing so. It is upon the discretion of the Court and would normally be dependent on the complexity of the case and volume of documents involved.
The parties can exhibit and file in court documents which are relevant and necessary to the claim or defence.
The court can also order for discovery of documents by either party. The documents should fulfil the criteria laid out under Order 24 Rule 3 of the ROC in that the documents must be :-
- Documents that the party relies on or will rely on; and
- Documents that could adversely affect the party's case, adversely affect another party's case or support another party's case.
In the Chilean legal system documentary proof is quite important. Documents may be submitted from the beginning of the trial to the expiration of the so-called "probatory term" (a term in which parties need to submit and produce all the documents and most evidence). At the trial court level this term lasts 20 working days, and, at the appellate court level, it lasts until delivery of the oral arguments (although the Appellate Courts seldom allow evidence to be produce before them).
As a general rule, there is no obligation to file specific documents, beyond the obvious advantages of submitting those favorable to the position of the party. Only certain procedures require the submission of specific documents. Also, later on, parties can force the production of documents in possession of the other party or even in the control of third parties.
In fact, in civil and commercial matters it is not even an obligation to present, along with the complaint, the founding documents in conjunction with it, and its submission may be reserved for a later trial stage.
At the time of filing, the sworn application may also include any such documents that may be necessary in support of the claim. Once the court proceedings have begun, the plaintiff may further present any evidence that may additionally substantiate plaintiff’s claim. Moreover, any party intending to produce a witness may file in the registry of such court an affidavit taken by such witness before a judicial assistant or any other person authorised by law to administer oaths, and a copy of such affidavit shall be served on the other party.
Once the sworn application is filed in the court registry, it is assigned to the judge, who then orders its notification to the counter party and who shall also sets a date for the first sitting. All causes shall be appointed for hearing within two months. There is no statutory period in which a cause needs to be heard and decided, however, Article 195 (2)(a) (ii) of the Code of Organization and Civil Procedure, provides that at the first hearing, the Court shall plan in advance, after consulting with the advocates of the parties, all the sittings to be held as well as the projected date of judgement and shall also direct the parties on what evidence and submissions it expects to be made at each sitting. Provided that the court shall, for grave reasons to be expressly stated in the records of the case or for reasons of urgency, call any other sittings and request any other evidence or submissions it deems fit.
As a matter of principle, ordinary proceedings can be split up into three phases:
- the pleading phase, where the parties must present and substantiate the factual basis of their claims and defenses and offer evidence for them; in this phase, each party is entitled to two complete submissions, at least one of which will typically be in writing. In cases with a high value in dispute, both rounds of submissions are often in writing. The parties are entitled to an oral hearing before the court to plead their case (even in cases where two sets of written exchanges have previously taken place). Such right may, however, be waived by the parties, something that one can observe to happen in practice from time to time ;
- the evidentiary phase, where the courts hear and review the evidence presented by the parties (at the court’s discretion this phase may or may not take place at the same time as the oral hearing mentioned in regard to the pleading phase); and
- the post-hearing phase where the parties may comment on the outcome of the evidence proceedings (either orally or by way of written submissions) and the court renders its decision.
Moreover, the courts may schedule additional hearings (so-called ‘instruction hearings’) at their discretion at any stage of the proceedings. Since normally the main purpose of such instruction hearings is to broker a settlement between the parties, the court will typically hold an instruction hearing after the first exchange of written submissions.
In the pleading phase, apart from documents that may be formally required (such as the authorisation from the Justice of Piece to proceed where applicable, see question 4, or power of attorneys where the parties are represented by attorneys) the parties must attach to their written statements all evidence available in the form of physical records. The parties must also list all further evidence to be heard (for example witnesses), commissioned (for example expert opinions) or examined (for example inspections) by the court in the evidentiary phase. Expert opinions that have been commissioned by a litigating party outside the court proceedings (party obtained expert opinions) are not considered to have the same probative value as court-ordered expert opinions. While the parties may attach party obtained expert opinions to their statements, the court will usually regard them as mere (albeit somewhat qualified) party allegations (also see question 16 on this topic). With regard to witnesses, it is usually deemed crucial that the court hearing the case obtains a personal impression of the witness in order to assess its credibility. This is why, at least as far as ordinary proceedings are concerned, it is not common (and may even be unadvisable) to introduce (pre-prepared) written witness statements into evidence rather than requesting the court to hear such witness personally in the evidentiary phase (also see question 15 on this topic). In this regard one should also note that, in contrast to other jurisdictions, in Switzerland legal counsel is neither permitted to assist a witness in drafting a written witness statement, nor to prepare a witness in connection with the latter's examination in court.
The timetable and duration of first-instance proceedings depend on several factors and especially on how the court decides to organise the specific proceedings at hand (for example, whether there will be one or more instruction hearings, whether there will be only one round of written submissions and an oral hearing afterwards or two rounds of written submissions with an additional oral hearing). Also, the quantity and type of evidence submitted by the parties has an im-pact on the duration of the evidentiary phase. This being said, in proceedings that are held mostly in writing (which is often the case in commercial disputes with a high value in dispute) the court will usually grant each party a time-period of approximately 2-3 months to prepare their respective statements, then schedule an oral hearing and examine the evidence before issuing its judgment. Altogether, a period of between one and three years can be taken as a benchmark for a full litigation conducted in ordinary proceedings in the first instance, depending on the complexity of the facts and further depending on whether or not there is a need to conduct an extensive evidentiary procedure.
As regards the ordinary procedure, the parties have to submit in writing their pleadings and all supporting evidence and procedural documents (including the power of attorney for the appointment of the lawyer by the client) within the deadlines as per our answer to question 4 herein above.
As regards particular monetary proceedings, the parties submit their pleadings, as well as all supporting evidence, at the date of the hearing, and the file closes three days after the hearing date with the submission of the rejoinders.
Firstly, you have the plaintiff’s writ of summons and the defendant’s reply, ref. question 8 above.
Once the statement of defence has been filed, the preparation of the case including the timetable for further written submissions is set by the court in consultation with the parties during a preparatory session. After this point there are no further mandatory written submissions, unless agreed otherwise in the preparatory session. However, in nearly all cases, a party will want to add further arguments or evidence to the case. This is done in written submissions on the party’s own initiative.
In Luxembourg civil procedure law, a distinction must be made between written and oral proceedings.
In oral proceedings, the instruction phase is mainly the responsibility of the parties, who shall inform the Court when they consider that the case is ready to be pleaded. At the hearing scheduled for the pleadings, the parties will present their arguments orally. Exhibits may be communicated between parties before the hearing. In practical terms, a pleading note is also exchanged between parties at the hearing, and given to the judge.
Written proceedings are conducted under the supervision of a judge (‘juge de la mise en état’) who is in charge of the management of the case. Whenever written submissions are required during the instruction phase, the judge sets a time schedule that is to be followed by the parties. Each party must communicate with the other party and file its submissions with the court pursuant to the time schedule fixed by the judge.
Once it is considered that everything has been said, the instruction phase shall be closed. The Court will then schedule a date for pleadings where each of the parties will be given the opportunity to orally plead the case. The Court will then schedule a date at which a decision will be handed down.
In federal court, after service of a complaint, the defendant must serve an answer or other response within 21 days. The defendant may choose to file a motion to dismiss the complaint, which must also be made within 21 days of service of the complaint. If a motion to dismiss is denied and the case continues, the defendant must serve its answer within 14 days of the notice of the court’s decision.
If a defendant intends to assert a claim against the plaintiff arising out of the same transaction or occurrence that is the subject of plaintiff’s claim, the defendant must assert such claims (“compulsory counterclaims”) in its answer. If a defendant intends to assert against the plaintiff a claim the subject of which is independent of plaintiff’s claim, then the defendant has a choice of inserting the claim in the pending litigation or pursuing a separate action. To the extent a defendant asserts a claim against the plaintiff in the pending action, the plaintiff must respond to the counterclaim within 21 days.
General pleading rules for commercial litigation in state courts are determined by each state’s procedural rules but are generally consistent with federal procedures.
Civil proceedings commence with the plaintiff filing a statement of claim, which must include names and addresses of the parties (and their attorneys); head(s) of claim; grounds for the plaintiff’s claim(s); list of evidence and supporting documents; and a brief statement of claim. The plaintiff must submit the originals of any supporting documents referred to in the statement of claim in the first hearing session and the defendant may submit its statement of defence and must submit originals of its supporting documents, if any, in the hearing session. Although statement of claim and statement of defence may be presented orally to the court during a hearing session, as a matter of practice both statements are usually filed with the court prior to or at the beginning of the hearing session.
During the first hearing session, statement of claim may be amended by the plaintiff subject to satisfaction of certain conditions, in which case the court may allow the defendant to prepare an amended or supplementary statement of defence after the first hearing. A defendant may also request for additional time to prepare its statement of defence.
If the defendant submits documents or evidence which cannot be refuted by the plaintiff without submitting new evidence, the plaintiff may request the court to postpone the trial to collect and submit such evidence.
After the writ if summons is registered with the court registrar, and (if required) a lawyer has presented itself to the court as the defendant’s counsel, the defendant is granted a period of six weeks to submit a statement of defence. Extensions of six weeks may be granted with the other party’s consent or by the court for compelling reasons.
The statement of defence may include a counterclaim. If a personal appearance is ordered, a statement of defence in counterclaim may be submitted two weeks prior to the appearance.
Incidental motions, often with regard to procedural issues, may also be raised in de statement of defence, prior to all other (substantive) defences. Examples are inspection of documents or copies thereof, third-party (impleader) claims, requests for joinder and intervention and the provision of security for litigation costs. Some motions, e.g. a motion contesting jurisdiction, may be raised in a separate submission, instead of in the statement of defence. The court may decide that the incidental motion is dealt with prior to handling the case on the merits. This is assessed in accordance with the nature and the contents of the claim, the interests of the parties and the interest of an efficient litigation process. In principle, the claimant is granted a two week period to submit a written reply to an incidental motion. Two week extensions may be granted with the other party’s consent or by the court for compelling reasons.
Particularly in complex disputes, the court may decide on further written submissions instead of or after a personal appearance. In that case, the claimant is granted a six week period to file a statement of reply (section 132 DCCP). Extensions of six weeks may be granted with the other party’s consent or by the court for compelling reasons. The defendant is subsequently allowed to submit a statement of rejoinder (section 132 DCCP). The same timetable applies.
To the extent the court deems this necessary, the court may allow the parties to file further submissions (section 132 subsection 3 and section 19 DCCP).
A process commences with the filing of the complaint, to which all evidentiary means available to the plaintiff must be attached, together with a description of those that are not available and/or require a judicial order to obtain. Following service of process, the defendant has thirty days to answer and must also attach to his response all evidentiary means available to him, under same standards.
If new facts are set forth in either the answer to the complaint or the defendant’s counterclaim, the plaintiff has thirty days to answer them and introduce new evidentiary means, under same standards.
Summing up: at the trial level, the evidence will be submitted in any of the cases described up until notice of the preliminary hearing is given.
During the second (appellate) stage, the parties may announce new evidence of new facts or of the same known facts in support of their appeal, provided that they obtained such new evidence after judgment was issued.
The parties can submit any written document to support their arguments and there is no strict timetable from a practical perspective.
The documents usually submitted are the agreements between the parties, correspondence, independent expert reports, invoices, statements of accounts, notices and other types of documents.
Usually the parties submit all documents in originals as if the photocopy of a document was contested by the opponent, the court cannot base its judgment on the said contested photocopy.
Documents submitted in a foreign language must be translated into Arabic by a duly qualified and registered translator.
In general the defendant has two main means to defend his rights: the counterclaim (has to be filed before the court decided on distribution of the burden of proof) and the answer to the claim (has to be filed in two weeks period counting from the day the information about the initiation of the proceedings was received by the defendant). Moreover, usually, parties submit written arguments that are neither prohibited nor prescribed by law, although are quite often used to inform the court and opponent about one’s standpoint also allowing to make a profound counterargument, but in general the hearings are based on the principle of oral hearings.
In what concerns written documents as written proof, those are to be revealed and presented to the other party and the court before the trial or other term prescribed by the court after the division of the burden of proof.