Regulating appeals on points of law: Prior execution and screening methods

Madame Elisabeth BARADUC

Ancien Président de l’Ordre des avocats au Conseil d’Etat et à la Cour de cassation de France.

L’accès au juge de cassation
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Regulating appeals on points of law (pourvois en cassation) can not be dissociated from the role conferred by law on the Court of Cassation. It will be considered here only in relation to civil matters, and it is directly connected with review of legality (contrôle de légalité) . This is the function of the Court of Cassation and it comprises two aspects:

 Reviewing the coherence of the decision referred, or “disciplinary” review (contrôle disciplinaire);
 Normative review (contrôle normatif) which seeks, first, to ensure uniformity in the interpretation and application of the law, and, second, to fill the lacunae in the law, or to adapt it to the necessary changes which the rule of law demands.

When one talks of screening referrals to the Court of Cassation, inevitably one thinks of reducing their number. However, I did not formulate the topic for this conference solely from a quantitive point of view, as that notion of screening methods appeared too simplistic to me. Certainly, screening, when applied to the lodging of referrals, means they can be compartmentalised and reduced. However, the aims of screening continue to be relevant when the referral is being processed so as to produce a differentiated response according to the question put to the Court of Cassation. Screening is therefore intended as a direct aid to the quality of justice.

The methods of screening that will be considered here concern the following in turn:
 Lodging the referral: a negative method of screening, in that it limits access to the court; and
 Processing the referral: a positive method of screening, in that it is aimed at providing an appropriate response from the Court of Cassation to the question posed.

I – Screening when the referral is lodged

Several criteria may be considered.

The financial risks of litigation:
The referral would only be possible if the claim that gave rise to the contested decision concerns a sum that is higher than a specific amount. The major disadvantage with this system is that litigation for a modest amount can still have a significant impact on the legal system and raise a fundamental question.

Granting leave to appeal on points of law by the author of the contested decision:
This method of screening the referral by the court that made the contested decision has two disadvantages. First, in countries where it has been used, the practice has coincided with a great deal of reluctance on the part of the court of first instance or court of appeal to grant leave. Second, it is a complicating factor in that it leads to an appeal being brought against the refusal to grant leave.

Prior execution of the decision:
As the referral does not have suspensive effect, the contested decision can and must be executed. The question of whether prior execution is a condition for the admissibility of the referral has been the subject of much debate. This resulted in the criterion falling into disuse. Demanding that the applicant execute the decision made against him or her would lead to inequality in gaining access to the Court of Cassation: inequality as against the applicant who is ordered to pay damages and the applicant whose referral is dismissed, and inequality stemming from financial resources where the applicant does not have the means to execute the judgment. A more flexible solution, which has been adopted in France, involves entrusting the court dealing with the referral with the task of deciding whether or not to examine it depending on whether the judgment has or has not been executed (see below).

The financial resources of the applicant:
A litigant’s lack of financial resources to instruct a lawyer obviously cannot bar him or her from having access to the Court of Cassation. So as to respect the principle of equal access to justice, a supranational and constitutional principle, a system of legal aid (aide juridictionelle) has been put in place. This is how it works in France: the State remunerates the litigant’s lawyer, but when it comes to bringing an appeal on points of law, a legal aid bureau (bureau d’aide juridictionelle), although not a court, examines whether there are good grounds for such a referral. If this is not the case, legal aid is refused, both to protect public funds and to avoid referrals which have no merit.

The nature of the contested decision:
The operative part of the decision (le dispositif) – which also contains information on the nature of the decision - is the best criterion for screening, when it comes to gaining access to the Court of Cassation. The contested decision must have been made by a court of final instance – in terms of the facts of the case - and must partly bring an end to the procedure, that is, it must have exhausted the lower court’s jurisdiction over the question of law upon which the referral is based. The following are therefore not open to appeal on points of law, or at least not an immediate appeal:
 purely interlocutory judgements (décisions avant-dire droit);
 decisions that do not conclude the proceedings, for example, where an application alleging a procedural irregularity (exception de procedure), or any other interlocutory application (incident) or application to strike out (fin de non recevoir) is dismissed; or
 decisions that only grant temporary measures.

These methods of screening, applied when the referral is made, are designed to reduce their number.

The methods of screening the processing of the referral, which will be considered now, are within the remit of the Court of Cassation itself and concern the ways in which the referral will be examined.

II - Screening the Processing of Referrals

These methods of screening may concern the consideration or processing of the referral.

A – Screening methods connected with the consideration of the referral
Removal from the Court list

As an appeal on points of law is an extraordinary application, in principle it should not obstruct the execution of the contested decision. Moreover, execution of the decision is a right of the respondent to the referral, whose authority to execute is contained in the contested decision. To safeguard this right and to ensure the protection of the party who was successful before the lower court, the Court of Cassation may decide to remove from the Court list a referral made to it if the judgment has not been executed. In this way the respondent may apply to the Court of Cassation for the referral to be removed from the Court list when the court of appeal judgment has not been executed. Once the Court has such an application before it, the delegate of the President of the Court of Cassation, through a non-judicial decision, assesses whether the demand imposed upon the applicant to comply with the judgment made against him would have unreasonable consequences with regard to his right to have access to the Court of Cassation. If the applicant is able to comply with the judgment made against him, the referral will not be considered for as long as the judgment has not been executed. If the financial circumstances of the applicant are such that he is unable to comply, so that prior execution, in full or in part, effectively amounts to an impediment to the applicant’s access to the Court of Cassation, the referral will be considered even though the judgment has not been executed, or has not been executed in full. This method of screening referrals is used in France today in conditions that carefully manage both the right of the creditor to have his enforcement order complied with and the right of the applicant to have access to the Court of Cassation.

B – Screening methods connected with processing the referral

Once the referral has been fully prepared for the hearing and the contentious investigation procedure has been completed, the reporting judge (le rapporteur), who is specifically assigned to the matter within each chamber, proposes the methods according to which the referral will be considered. These methods also depend on the response which he considers to be appropriate to the referral. This method of screening is therefore carried out on the basis of the contents of the pleadings, the issue of whether the referral is reasonable or not, the nature of the disciplinary or normative review which the Court of Cassation is invited to consider and the importance of the question raised.

Processing unreasonable referrals - the non-admission procedure:
When the appeal on points of law is manifestly inadmissible or not founded on a reasonable ground of review, the reporting judge may propose that it be sent before a bench formed of three justices chosen from the Division to which the referral has been assigned, with a recommendation that the referral should not be admitted. The decision not to admit a referral is taken by that Division. This procedure, which has been in use at the Court since 1 January 2002, is very close to the one used by the Conseil d’Etat since 1987. The decision not to admit the referral does not contain a statement of reasons, and therefore does not contain an approval of the solution adopted by the court of appeal. For this reason, strictly speaking, it is not a judgment, which presupposes a statement of reasons. It is, however, a decision that brings an end to the referral. When the reporting judge makes such a recommendation, it is sent to the lawyers for the parties, who may contest it if it is manifestly erroneous. Commonly used by all Divisions of the Court of Cassation in varying degrees (around 30% to 40% of referrals), the non-admission procedure concerns referrals for both disciplinary and normative review with no distinction made. In the case of the latter, non-admission is only envisaged if the issue raised has already been decided by the Court, and it does not intend to change its position.

Processing referrals based on disciplinary grounds:
First of all, it is necessary to point out that there is no division between disciplinary grounds and those seeking normative review. Some disciplinary grounds actually have a normative character. Such is the case with a failure to file a reply in a matter concerning the issue of whether the pleadings have become operative. It is the same for the ground of misconstruction of a document (la dénaturation), where the provision in question is a clause of the sort that is found in numerous documents. Likewise, the Court of Cassation, having given itself the power to reclassify grounds of referral, may prefer to censure a decision on what appears to be a disciplinary ground, even though the solution is normative in character. The distinction may therefore appear artificial, but it appears to me relevant to the requirements of this paper. Sending a matter before a bench which makes a ruling on the referral by means of a reasoned judgment is always recommended when the reporting judge envisages the judgment being set aside. This is also the case when the reporting judge envisages that the referral will be rejected, but it is nevertheless important to publicise the extent to which the Court of Cassation intends to review the reasons given in the judgment of the lower court.

Processing referrals seeking normative review:
When the referral invites the Court of Cassation to review the uniform application of the rule of law, or to rule on a new question, or to fill a lacuna in the law or even to ensure the adaptation of the law to changes in society, it seems necessary to make an initial screening of all the referrals raising the same question. This grouping together of referrals, a first stage in the method of selecting how they are to be processed, can only be carried out by mobilising computer technology and by making use of a clear statement of the question raised given by the author of the referral. This information is given by means of a note which accompanies the supplementary pleadings, where the grounds of the appeal on points of law are developed. Processing the referral is always left in the hands of the reporting judge, who may propose that it be heard by a bench formed of three justices or by a Section bench or Division bench in plenary session (comprising at least five justices). The President of the Division that has been assigned the referral may of course decide the formation of the bench which will hear the case. Broadening the scope of the submissions so as to weigh up the social, economic and human consequences of the case, and to bring to light what is at issue in the contested decision is sometimes desirable. So, for example, contributions made during oral submissions from persons or bodies capable of enhancing the legal argument are encouraged. The question of whether the Court sits in plenary session or as a joint bench is left up to the President of the Court of Cassation or the President of the Division dealing with the referral, who decides by way of a decision containing no statement of reasons. That, however, is a matter to be considered at the third conference.

Thus it can be seen that the methods of screening and handling referrals have the aim of discouraging the abuse of the right to gain access to the court of cassation so as to preserve the specific nature of this Court as a regulator of the law. In the final analysis, the different methods of screening are closely linked to the quality of the decisions.

Referring a case to the Court of Cassation – Jean Dujardin, Principal Counsel for the Crown at the Court of Cassation in Belgium

Thank you, Mr. Chairman. I trust you will allow me to keep the customary pleasantries brief, as our allotted time is short.

You will notice that the same subject will be dealt with by Elizabeth Baraduc and myself and that, although we did not confer, our point of departure is the same. This will therefore be a variation on the same theme from the point of view of a judge and that of a lawyer. I think that it is very useful to shed light upon the same theme. It would also be a challenge for an old professor of law like me to try to shed light upon the essential issues concerning a reference to the Court of Cassation with such a prestigious audience.

Access and referrals to the Court of Cassation are determined directly by the specific nature of the Court’s role.

As a supreme court, the Court of Cassation is required to censure the decisions of the lower courts that are alleged to have contravened the law (review of legality or contrôle de légalité) or when certain formal rules of the procedure followed are alleged to have been breached (procedural review or contrôle de régularité). This part of review is sometimes described as disciplinary review (contrôle disciplinaire), in that it only concerns the statements of reasons given in judgments (les motivations), the issue of due credence being given to the documents in the case (la foi due aux actes), the rights of the defence (les droits de la défense) and the principle that the Court must make a decision on all the questions submitted to it and on nothing else (le principe dispositif), which sets the boundaries of the referral made to the Court. But that is not the defining role of the Court of Cassation; its defining role is to ensure that the case law in the ordinary courts is unified, as well as safeguarding the interests of the individual parties to the litigation. The Court therefore has a public interest role which is to check that the lower courts apply and interpret the law consistently, and to ensure unity of this application and interpretation so as to guarantee equality before the law, and, in that way, guarantee legal certainty. At the same time it has to remain mindful of the need to adapt legal rules to an evolving society governed by the rule of law. Indeed, legal certainty should never be used to enshrine a law that has come about through case law that has stopped evolving.

It is not possible to deal properly with the issue of referring a case to the Court without having regard to the Court’s essential role. That is the reason for this introduction. The conditions for referring a case to the Court are procedural and substantive. With regard to substance, they concern the content and scope of the referral, which must be specified by reference to the contested decision, the grounds relied upon against that decision, the applicant - who must have locus standi - and the respondent.

With regard to procedure, the conditions concern the notice of referral (la declaration de pourvoi), service of the notice of referral (la signification de pourvoi), lodging the notice (le dépôt d’un mémoire) and the time limits (les délais).

All these conditions concerning the referral are like pieces of a jigsaw; if one of the pieces is missing, there can be no question of a valid referral to the Court of Cassation.
These requirements may appear excessively formal. Nevertheless, they are justified because an appeal on points of law must remain exceptional. This is because the application to set aside a judgment concerns, and it may only concern, a defect in the court’s ruling which was supposed to contain all the elements of a definitive response, in fact and in law, to a litigious question over which the parties have already had a full hearing. This definitive decision is not open to appeal on the substantive issues of the case. These are essential elements of legal certainty and harmony, which require that the responses from the court should only be called into question under very strict conditions. That is common to every state governed by the rule of law and which has a Supreme Court.

Who then can make a referral to the Court of Cassation?
Only a party to the proceedings and, more precisely, a party to the contested decision, may make such a referral. In addition to the requirement of having an interest in the decision, that party must also have been adversely affected by it.

The party must specify the interest which he or she has, and upon which he or she intends to rely as an appellant on a point of law.
The Office of Counsel for the Crown may appeal on a point of law if it is party to the proceedings. There is also a separate Office of Counsel for the Crown at the Court of Cassation. The fact that the law requires that this Office intervene in every matter before the Court, so as to make its opinion on the merits of the referral known to the parties and to the judges of the Court, does not grant it the status of a party to the proceedings, but that of an amicus curiae, which, independently and impartially, speaks on behalf of the law.
Under what circumstances may a party have access to the Court of Cassation?

The answer to this question is also determined directly by the specific role of the Court of Cassation. This role is not that of a court of third instance brought in to settle disputes. The contested decision must have been made at last instance on the substantive issues; it must have exhausted the jurisdiction of the court on the contentious issue, that is, the court has made its ruling and has nothing more to say on this point of law, which has been definitively decided. The court is therefore functus officio.

Prior to this, the appeal on points of law must have been brought within a time limit specified by law, failing which the party loses the right to make a referral.

The applicant must identify precisely the party against whom the referral is made, what the applicant is criticising in the contested decision, the law which is claimed to have been violated, and the ground relied upon to support the claim. All these conditions must be strictly complied with, failing which the Court of Cassation will dismiss the application, without even considering the basis of the criticism.

When can a case be referred to the Court of Cassation?
The time for making a referral is important. The criticism, upon which the appeal on points of law is based and which the statement of grounds for the referral must specify, is not admissible to the Court of Cassation until the point of law which the litigation concerns has been definitively ruled upon at final instance on the merits, so that no lower court has to go back over it.

Furthermore the law only authorises a referral if the other grounds for having a judgment set aside have been exhausted.
Upon what grounds may a referral be made?
The grounds or reasons for a referral must constitute a specific cause of action and the applicant must identify the legal consequences that are prejudicial to him or her. The applicant must identify precisely the provision which he or she intends to criticise and the legal text that is alleged to have been infringed.

How must a referral be made? How is a matter brought before the Court of Cassation? Satisfying the requirements cited above means complying with certain formalities in order to guarantee that what is, and must remain an extraordinary remedy is effectively taken into consideration. It is not enough that the interested party or his or her lawyer formally applies for an appeal on a point of law. The referral must also be served in its entirety on the respondent to the referral by a court official, namely the court bailiff.

Added to these procedural requirements are the requirements as to the aim and scope of the remedy.
The respondent to the referral must be able to know precisely in what way the contested decision is being criticised, and on which of the court’s reasons, on which part of its dictum and on what legal basis the referral is founded. The respondent is also entitled to know in what way the quashing order, which may result from this, might affect the decision as regards the applicant, but also as regards the respondent to the referral. All these conditions may appear numerous, even exacting. However, all these requirements are merely part of the established respect for natural justice and the general principle of respect for the rights of the defence, which are characteristic of all legal systems.

To be more specific, these demands are all the more important as the procedure for an appeal on points of law is essentially written, hence the importance of the grounds being filed in pleadings drafted by specialist counsel. As regards the written document, I am talking about the importance of what is pleaded and of the exclusion of any ground that has not been pleaded. Our allotted time is too short for me to dwell on this, but I am ready to reply to any questions on this point.
Bringing a case before the court also leads to a problem in controlling the floodgates of litigation. The constant growth in the number of cases submitted to the Court has led to a severe influx which the court must be able to control. Failure to do so would mean that achieving its underlying goal of defining the law would be undermined. This problem will be examined further by Elisabeth Baraduc. Floodgates control calls for solutions which are a direct response to the problem posed by bringing a matter before the Court.

It concerns in particular the compulsory representation of parties by specialist counsel; the establishment of a section for preliminary consideration of referrals; sections with compositions that vary according to the difficulty and importance of the cases; a simplified statements of reasons, which may even be summary if this is appropriate to the nature of the case; and logistical support for justices, that is administrative, legal and computer-based support.

Access to the reported decisions of the Court of Cassation
The question of having access to the Court must also include the question of accessibility to the reported decisions which it produces, accessibility through printed publications but also through Internet sites, the new technologies.

All these demands that shape the way in which a matter is brought before the Court are not in the end fundamentally different from those imposed on every legal measure that requires a response in law.
Nevertheless, as far as the Supreme Court is concerned, these conditions are more demanding and more restrictive because of the consequences of the Court’s decisions. Thank you for your attention.