On 14 January 2021 the Court of Cassation issued a reminder that an action on the merits benefits from the interrupting effect of the prescription period for a request for summary proceedings to release escrow documents collected by a bailiff, insofar as such action is effectively included in the latter. In addition, these two actions have a single purpose – namely, to obtain compensation from the court.
On 22 October 2010 a company obtained a commercial court ruling in summary proceedings on the basis of Article 145 of the Code of Civil Procedure in order to appoint a bailiff to carry out investigations on the premises of other companies with regard to acts of unfair competition. The petition was granted on the same day. Article 145 is often used in France as a pre-trial proceeding to obtain proof of evidence for a future legal action.
On 8 February 2011 the claimant – also on the basis of the Code of Civil Procedure – summoned the defendants before the same presiding judge of the commercial court to obtain an order for the release of the escrow documents collected by the bailiff. The release was ordered by a court of appeal.
On 25 June 2014 the claimant summoned the defendants to the commercial court in order to obtain compensation on the basis of, among other things, the information collected during the investigations carried out at the defendants' premises. The defendants opposed the prescription of the legal action, as based on the termination of commercial relations and on the facts of unfair competition, claiming that the action on the merits had occurred more than five years after the date on which the claimant knew or should have known the facts enabling him to exercise his right.
The Paris Court of Appeal agreed with the defendants; it held that the claimant's action was prescribed and rejected all claims. The court considered that the proceedings regarding the designation of the bailiff had only suspended and not interrupted the prescription period and that the action to obtain the release of the escrow documents had no effect on the prescription period.
Thus, the claimant filed an action before the Court of Cassation.
The claimant argued that in accordance with Article 2241 of the Civil Code, any legal action, even in summary proceedings, interrupts the prescription period. In this case, by considering that the claimant's action was time barred on the grounds that the first action (ie, requesting the appointment of the bailiff) had taken the form of a request rather than a summons, the Court of Appeal had breached Article 2241 of the Civil Code.
The Court of Cassation was not convinced by this argument. It held that in accordance with the first paragraph of Article 2241 of the Civil Code, an application based on Article 145 of the Code of Civil Procedure, which introduces a non-adversarial procedure (if introduced through a request), does not constitute a 'legal claim' within the meaning of Article 2241 of the Civil Code. Hence, the Court of Cassation stated that the Paris Court of Appeal had been right to conclude that the request to appoint a bailiff, which had been made in a non-adversarial manner, had not interrupted the limitation period for the action on the merits.
The claimant maintained that the Paris Court of Appeal had breached the same article when, in order to declare the action for liability exercised against the manufacturer as time barred after holding that the five-year limitation period had begun to run, it had stated that the action for liability on the merits did not have the same purpose as the action to release the escrow documents to establish proof of the manufacturer's breaches. In other words, the Paris Court of Appeal had considered that the request to release the escrow documents (the second action) had not interrupted the limitation period with regard to the liability action for unfair competition. Indeed, for the Paris Court of Appeal, if Article 2241 of the Civil Code provides that a legal action, even in summary proceedings, interrupts the limitation period as well as the foreclosure period, such a request exclusively interrupts the limitation period of the right that is the subject thereof. Further, as in this case, when relating solely to the release of escrow documents, such a request does not constitute an application relating to the unfair performance of the contract.
In this respect, the Court of Cassation held that under Article 2241 of the Civil Code, if – in principle – the interruption of the limitation period cannot extend from one action to another, when both actions have the same purpose, the second action is effectively included in the first. Hence, the Court of Cassation considered that the Paris Court of Appeal had breached this article. Indeed, the Court of Cassation considered that the request for release of the escrow documents, which, similarly to the application on the merits, sought compensation for a loss, interrupted the limitation period for the action on the merits, as this was effectively included in the first action aimed at obtaining the designation of the bailiff. In this case, the release of the escrow documents collected by the bailiff, following the investigations carried out on the premises of the defendants, had enabled the claimant to collect sufficient information and consequently pursue an action for compensation before the judges on the merits.
Consequently, the limitation period was suspended on 8 February 2011 (the date of the request to order the release of the escrow documents) until 16 November 2011 (the date of the appeal decision ordering the release). A new deadline (five years) had then begun to run from that date. As such, the action on the merits filed on 25 June 2014 was not time barred.
The Court of Cassation overturned the Paris Court of Appeal's decision and returned the case.
In this decision, the Court of Cassation has provided a notable reminder of the particularity of a legal action introduced in France under Article 145 of the Code of Civil Procedure through a request – in the sense that such a proceeding, insofar as it is non-adversarial, does not interrupt the prescription period of a legal action.
This should be kept in mind because if a non-adversarial request is likely to surprise the opponent, lawyers should be particularly vigilant with respect to the time limitation period. Hence, in cases of non-adversarial requests and where pre-trial measures are expected to last, it can be preferable to summon on the merits of the case, as a precautionary measure, and request a stay of proceedings pending the end of the interim measures.
