After a claim has been commenced, what written documents must (or can) the parties submit and what is the usual timetable?
A plaintiff must produce and provide a copy of the document upon which he sues that is in his/her possession or power. The document must be presented in court when the claim is first presented. The plaintiff must also provide a list of documents that he/she intends to rely on during evidence irrespective of whether those documents are in his possession/power or not. Failure to do so means that the documents not listed are inadmissible in evidence and can only be produced with the leave of the court.
In addition to the foregoing, the parties must produce all documentary evidence that the plaintiff intends to rely on and that are in his possession or power. These must be produced at the first date of hearing and this requirement applies equally to the defendant.
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 and sittings shall be held on a bi-monthly basis. There is no statutory period in which a cause needs to be heard and decided, however Article 195 (2)(a) (ii) of the Code COCP, 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.
A statement of claim, if not earlier endorsed on the Writ of Summons, must be served on the defendant(s) within 14 days after he has entered appearance.
A defendant who wishes to defend an action must, unless the Court gives leave to the contrary, file and serve a defence on the plaintiff within 14 days after the time limited for appearing or after the statement of claim is served on him, whichever is later. A defendant may also make a counterclaim at the same time.
The plaintiff must file and serve a reply and a defence to any counterclaim, if any, in the same document, on the defendant(s) within 14 days from the defence (and counterclaim) has been served on the plaintiff.
After the close of pleadings, the Court also commonly orders that a list of documents which are or have been in the possession, custody or power of any party, and an affidavit verifying such list, to be served on any other party to the action. If one party has reason to believe that the other party has not made adequate disclosure, the former may apply for specific discovery of documents.
Prior to trial, affidavits of the evidence-in-chief of all witnesses must be exchanged.
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 comparison with other systems such as the US, Spanish legal proceedings are quite front-loaded.
Written documents (including, amongst others, documents or opinions proving the value of the subject of the dispute, reports concerning relevant facts and expert opinions which the parties base their claims) must be submitted with the claim or statement of defence. Exceptionally, if the parties do not have the documents when submitting the claim or statement of defence, they may designate the file, protocol or place where they can be found. The claimant, if admitted by the relevant court, may also submit documents the interest or relevance of which has become evident as a result of the allegations made in the response during the pre-hearing.
Likewise, and also provided the court admits their submission, other documents may be submitted at a later stage if they are produced subsequent to the filing of the statements, or they were unknown or unavailable at the time of the filing.
For your ease of reference, please find below the illustrated timeline for a case trial.
Each box represents a hearing scheduled for the stated agenda. , Each hearing are 2 weeks apart . Consequently, in general the first hearing until the issuance of a decision will take approximately 4 (four) to 5 (five) months.
The documents to be submitted in a civil court proceeding are listed below:
a. Claim (from plaintiff);
b. Demurrer and response (from defendant);
c. Reply (from plaintiff);
d. Rejoinder (from defendant);
e. Evidence/witness statements/experts opinions (from plaintiff);
f. Evidence/witness statements/experts opinions (from defendant);
g. Concluding statements (from both sides).
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.
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 responds to and contradicts the defendant’s answer to the claim.
- 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 is concluded, and before the parties move for closing arguments.
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.
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 submissions.
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.
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.
The RSC provide the formal timelines to be applied in proceedings. In that regard, once a summons has been served, the defendant(s) must enter an appearance within eight days indicating their intention to appear to defend the claim or, alternatively, to contest the court's jurisdiction.
A statement of claim must be served on the Defendant within 21 days of the appearance being entered.
Thereafter, a defendant has 28 days from receipt of a statement of claim to deliver a defence and/or counterclaim. A reply to the defence and/or counterclaim may be delivered by the plaintiff within 14 days thereafter.
While the above timelines are laid down by the RSC, in practice, such timelines are often extended. Proceedings which are case managed by the Commercial Court are subject to directions timetables which set out the timelines for the delivery of all pleadings, discovery and outline written legal submissions. Such directions timetables are usually agreed between the parties and handed to the court. In the absence of agreement between the parties, the court will fix directions.
Together with their submissions (statement of claim, statement of defence, etc.), the parties must file all the documents in their possession and supporting their (substantiated) assertions. The filing of written witness statements is not common. Witnesses are rather questioned by the court to specific assertions made by the parties (assertions which are directly linked to specific witnesses) in the course of the proceeding on the taking of the evidence. If a (unsuccessful) hearing before the Justice of Peace preceded the filing of the statement of claim, the claimant party must also file the so called authorization to proceed, which is issued by the Justice of Peace.
After having received the statement of claim – and an advance payment by the claimant party up to the amount of the expected court costs – the court sets the defendant party a deadline to file the statement of defence, which time limit can be extended so that in principle (the practice of the cantons is different here) around two months are available for the submission of the statement of defence in the ordinary proceedings. The same deadlines apply in principle to the claimant's reply and the defendant's rejoinder, so that the (double) exchange of submissions is completed after approximately 6 to 8 months (depending on court holidays which respectively prolong the deadlines). The court then decides whether evidence proceedings should be carried out, which may take another 6 to 8 months. A first instance judgment can therefore be expected within a period of 12 to 18 months. The complexity of a case can of course significantly extend the duration of the proceeding. Within the proceeding, the court may, as already mentioned, conduct settlement hearings which are statistically often successful and lead to an end of the litigation by way of a settlement agreement.
The parties may submit all documents deemed appropriate to support their claim. Written documents are freely admitted even with the submission of the claim itself, and they are classified as:
a) Public instruments: documents and copies thereof which fulfil legal formalities and are certified by authorized public officials.
b) Private instruments: those granted by anyone and not authorized by any public officials, whose authenticity can be proven at trial.
Documents shall be submitted from the filing of the claim until the end of the proof-taking term (which lasts for 20 days from the time that the judge set out the facts that have be proven by the parties -“points of proof”-. A reduction of this term is possible if all the parties agree on it and some extensions are also possible in cases where proof taking occurs outside the court’s territory.
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 handed earlier, its existence was ignored or if the submission becomes necessary to the proceedings.
A court proceeding is commenced when the administrative fee has been paid and the court deems that the statement of claim is satisfactory as concerns the requirements of form and content. The court will serve a summons to the defendant ordering the defendant to file a written statement of defence, typically within three weeks. A default award may be rendered against a defendant who fails to respond to the claim after having been served. 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, typically during a preparatory session. There are no further mandatory written submissions but in virtually all cases the parties are required to submit statements of evidence, if it has not been submitted in prior submissions, prior to the main hearing.
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.
The parties can submit any written document to support their arguments and there is no strict timetable.
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.
The claimant must support documentary evidence to support his claim, and the defendant may submit documentary evidence to rebut the claim. Electronic evidence is recognized. New evidence may be introduced at any stage of the proceedings.
As a rule, the parties are under a duty to give access to objects etc. (including documents) that may constitute evidence in legal proceedings, subject to the limitations in the rules on prohibited evidence and immunity. The parties are usually free to submit whichever written document they want. However, if the document is not relevant for the assessment of the claim, the court may decide that the document has to be removed from the case documents. As part of the preparatory phase, the court will set a date for the completion of the preparatory phase. This wil usually be two or three weeks before the main hearing. After that date, no new documents may be submitted unless certain requirements are met.
In federal court, after service of a complaint, the defendant must serve an answer or other response within 21 days. In certain cases, the defendant may file a motion to dismiss the complaint, which must be made within 21 days of receipt of the summons and 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.
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 claimant must submit a particulars of claim, outlining its case. This can be served with the claim form or within 14 days after the claim form has been served. Once the defendant has been served, they have 14 days to file a defence (or 28 days, if they choose to file an acknowledgement of service first). These might (but not must) be followed by a Reply from the Claimant and a Rejoinder from the defendant, if there are further relevant points to plead. Both parties must also submit a directions questionnaire which helps the court decide which court or division is most appropriate for the case.
The trial begins with a writ of summons, which is followed by a statement of defense. These documents are the basis for the further progress of the case. Furthermore different types of submissions can be demanded by the court in the case schedule, hereunder reply and rejoinder or documents related to specific questions. The court can order the parties to hand in a comprehensive case summary or a summary of claims prior to the actual hearing. In this document the important elements and arguments of the case is set out in summary form. The court will determine certain deadlines for the submissions of the documents. It is very common to demand reply and rejoinder and consequently plaintiff and defendant will normally submit three pleadings each.
A case can normally be finished within a year or two, but there is no official maximum.
The procedure before the Commercial Court is oral.
Nevertheless, in practical terms, parties often file written submissions to support their claims, together with any relevant exhibits. A party which refers to a document in its submissions must disclose such document to any other party to the proceedings. When a party is a company, Commercial Courts almost always request that a certificate of incorporation be filed with the submissions.
The supervising judge (juge rapporteur) – who ensures the management of the proceedings – sets procedural hearings during which the parties either file their submissions and evidence or request postponements to get additional time to prepare their defence.
Each party usually files two sets of submissions, except where further submissions are required, for example in the event of an incidental plea, of a third-party intervention or where the matter is complex.
As regards the usual timetable, procedural hearings before the Paris Commercial Court are generally held every four weeks. However, several postponements may be granted before an injunction to file submissions is issued by the Court to compel a party to file its submissions.
The date for the trial hearing is set by the supervising judge once the parties have exchanged all relevant arguments in their pleadings.
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.