Timing issues are an important consideration when faced with a choice of jurisdictions in which to issue legal proceedings
When deciding which jurisdiction to opt for to resolve disputes in your contract, or deciding where to bring a claim where there is a possible choice after a dispute has arisen, various factors will need to be considered. These will include, for example, where assets are located if enforcement post-judgment is being sought, where witnesses are located, which courts have the most expertise in hearing the dispute in question and so on. A key factor will also be the likely time it will take to reach judgment in any particular jurisdiction. Whether you are seeking compensation for breaches or seeking the fulfilment of the other side's contractual obligations, the time it takes to get to a decision in your favour can be critical for the commercial success of your transaction.
In this article, we look at six different European countries for a brief overview of how long it takes to get to judgment, how long you have to bring a claim and various other timing-related issues.
How long do you have to bring a civil claim?
England and Wales
The basic position under English law is that a claimant has six years from the date when a cause of action accrues to bring a claim for breach of contract or negligence.
Where there is no specific limitation period in accordance with a specific law, the general time periods set forth in the applicable Civil Code apply. For instance, civil claims for payment obligations under Spanish Civil Law are time-barred after five years, and the statute of limitation for the same claim under Catalan Civil Law is three years. However there are some specific areas where the time may change, for example:
- the Agency Contract Law establishes that the agent has one year from the termination of the contract to claim for client compensation or to claim for damages;
- in relation to civil claims for liability arising from fault or negligence, the right to action will expire after one year from the date of knowledge of the fault or negligent act by the aggrieved party.
The standard limitation period for contractual claims is ten years. However, shorter limitation periods apply in some specific cases:
- two years for claims related to insurance matters;
- five years for claims for the recovery of legal interest due on a sum as well as for any claim related to sum to be paid periodically per year or in shorter terms;
- one year for claims related to shipping matters.
The limitation period for claims arising from torts is five years, unless the tort is considered a criminal offence. In such a case the limitation period is the same as that provided under Italian criminal law for the prosecution of the crime.
The general limitation period for bringing a claim is three years. In addition to the regular three-year period, there are shorter or longer special limitation periods:
- two years for defective goods;
- two years for defects under a contract for work and services;
- five years for construction defects;
- ten years for real estate;
- 30 years for claims for damages due to bodily injury, injuries to health and liberty;
- 10 years for other claims for damages and any other claims.
The limitation period is determined by the type of claim. Often the limitation period is five years. For example, a right of action to claim performance of a contractual obligation to act is time-barred on the expiry of five years.
Under Polish law the basic limitation periods are:
- three years ending December 31 of the last year – for claims related to business activity;
- three years ending December 31 of the last year – for periodical claims;
- six years ending December 31 of the last year – for other claims, including claims of consumers.
The most notable exceptions to the above include:
- two years ending December 31 of the last year – for claims for remuneration for services provided in the business activity;
- two years ending December 31 of the last year – claims related to physical defects of sold goods (movables);
- five years ending December 31 of the last year – claims related to physical defects of sold goods (real estate).
When does time start running from?
England and Wales
Broadly, from the date of the breach of contract or the date on which damage was suffered as a result of a negligent act or omission. When calculating a limitation period, the date on which the cause of action accrues is not included.
In general terms, and if there is no special provision applicable, the time starts running from the day on which the claim could have been brought, that is, when the claimant has knowledge of the contract breach or of the occurrence of the negligent act. However, it must be noted that specific legislation may establish when the time will start running. Taking the same example mentioned above, Agency Contract Law establishes that for agent claims for client compensation or damages, the one-year limitation period starts running from the date of termination of the agency agreement.
The limitation period starts to run from the date on which the relevant right can be exercised or, in tort, when the injured party is in a position to know of the damage and of the author of the damage.
Limitation periods generally start running at the end of the year in which the claim arises and the claimant becomes aware, or but for its gross negligence should have become aware, of both the circumstances giving rise to the claim and the identity of the defendant. If you do not know or could not have known about your claim, the three-year limitation period does not begin to run. There are, however, statutory maximum time limits. After these time limits have expired, the claims finally expire.
The commencement of the limitation period is determined by the type of claim. For example, for a right of action to claim performance of a contractual obligation to act, time starts running from the day after the claim has become due and payable. For a right of action to claim damages or a contractual penalty, in principle, time starts running from the day after the one on which the injured person has become aware of (i) the inflicted damage or the fact that the contractual penalty has become due and payable, and (ii) the identity of the person who is liable for this damage or contractual penalty. However, in any event such claim is time-barred on the expiry of twenty years after the day on which the event occurred that caused the damage or that made the contractual penalty become due and payable.
The limitation period starts from the date the claim is recognised to be enforceable. If the claim is not enforceable by law and requires any actions of the creditor to become enforceable (for example, to summon the debtor), the limitation period starts at the earliest date the creditor could have reasonably acted to take the necessary action.
Can you protect your position if you are nearing the end of a limitation period, and if so, how?
England and Wales
Apart from starting proceedings, it is possible under English law for the parties to agree to shorten or lengthen the limitation period. Limitation periods do not extinguish a claimant's cause of action – they merely provide a defendant with a defence. Therefore, parties can contract out of the right to rely on a limitation period, and this is commonly done by a standstill agreement.
In general terms, and when it comes to claims subject to an expiration date, there is nothing you can do to protect your position if you are nearing the end of an expiry date, as the right to claim lapses automatically. On the other hand, when it comes to actions subject to statute limitation, the limitation period can be interrupted by filing a civil claim and bringing the action before the court and/or by an out-of-court claim made by the creditor. Moreover, any act of acknowledgement of the debt by the debtor interrupts the limitation period.
The limitation period can be interrupted by:
- serving the counterparty with a written notice asking for the fulfilment of the relevant claim;
- bringing the claim before the court.
As a result of the interruption, a new relevant limitation period starts to run. In the latter case, the limitation period is interrupted until the judgment becomes final. After that a new limitation period of ten years begins to run, even for rights for which a shorter period is provided for by law.
A few common ways to protect your position are the following:
- Apply for a payment order: The fastest way to prevent the statute of limitations from running out shortly before the end of the year is to apply for a payment order.
- Conduct negotiations: If you conduct serious negotiations with the debtor, this can also stop the limitation period.
- Standstill agreement: It is common in practice for a claimant to ask a potential defendant to enter into a standstill agreement to waive its right to invoke the statute of limitations defence for an agreed period. This gives the claimant time to investigate the claim fully, without having to commence court or arbitration proceedings to stop the claim from becoming time barred.
- Start legal proceedings: You can also prevent the statute of limitations by starting court or arbitration proceedings. As soon as the court or arbitration institution receives your complaint, the statute of limitations is suspended.
If a claim is time-barred because of a statute of limitations, it does not automatically expire. A court in Germany will still handle a claim until it has been established that the statute of limitations has expired. Unless the party claiming limitation expressly pleads the defence, the creditor will succeed with its claim even if the claim is time-barred.
You can protect your position by (an act of) interruption of a limitation period. In general, interruption can occur in four ways:
- by initiating a (counter)claim in legal proceedings as well as by any other act of prosecution by the creditor;
- by a letter of formal notice from the creditor to the debtor, in which performance is demanded;
- by a written announcement by the creditor to the debtor in which it unambiguously reserves its right to claim performance; and
- by acknowledgement of the claim by the debtor to the creditor.
However, further specific provisions may apply.
There are a number of actions that can be taken to protect the claim before the limitation period expires. Most notably, to suspend the limitation period you may:
- conclude a mediation agreement – suspension for the time of mediation;
- apply to the court for a conciliation hearing – suspension for the time of court proceedings.
To interrupt the limitation period (meaning that it starts again) you may:
- make the debtor acknowledge the claim;
- file the claim to the court.
How long can you (roughly) expect it to take for a civil/commercial claim to get to trial?
England and Wales
This will depend to some degree on the type of case (obviously, the more witnesses and documentation involved, and the more complex the issues, the longer the case will take) and cooperation of the parties but a rough estimate would be around 15-18 months for a commercial claim.
No precise answer can be given, as it depends on the type of claim and procedure and on the particular circumstances of each court, including, without limitation, geographical coverage of the court, number of judges (and substitute judges), workload… Generally speaking, and when it comes to ordinary proceedings, once the claim has been filed and the defendant has submitted the statement of defence, the court summons both parties to a preliminary hearing that usually takes place within the next three to ten months. After the preliminary hearing, the trial will be held within the next six to ten months.
A civil/commercial litigation before the court of first instance can take two or three years on average before getting to the decision phase. In this phase the parties are called to submit their closing arguments and file the final briefs. The length of proceedings varies considerably depending on the local court where the litigation is brought.
It can take between six months and a year from the service of the claim to the main hearing depending on the complexity of the claim. The main hearing is normally preceded by several rounds of written submissions.
This depends entirely on the litigation strategy of parties and factors such as the type of proceeding (that is, on the merits or summary), the type of claims raised by both parties (for example, procedural issues and counterclaims), and the complexity of the claim (for example, witness hearings and expert(s) appointments). In a standard case on the merits, without any postponement of procedural acts, an oral hearing is expected within a year after the defendant appeared in the proceedings.
Approximately one year from the filing of the claim to the court.
How long would you expect to wait for judgment to be handed down after trial?
England and Wales
There is no written rule, but you should expect to receive judgment within three months, although judgments are often handed down far sooner than that.
It depends on the situation. Procedural law does not establish any deadline in this regard, and several factors play a role: the type of claim, the subject matter, and, as mentioned, the particular circumstances of each court, including, without limitation, geographical coverage of the court, number of judges (and substitute judges), workload… From our experience, you usually expect to wait between one and six months for a judgment to be handed down after a trial.
There is no mandatory time limit for passing judgment under Italian law. Judgments are generally passed within three months after the filing of the final briefs.
Depending on the complexity of the case, from three months to one year.
The standard term for the delivery of a judgment in proceedings on the merits in the first instance is six weeks after the oral hearing. This is similar for appeal cases. However, this term can be extended several times by the (appellate) court. Therefore, we normally would expect the delivery of a judgment between two to four months after the oral hearing.
In cases resolved solely on documentary evidence, up to two weeks after the case went to trial. In cases requiring examinations of witnesses or expert opinions, in most cases one to three years after the case went to trial. In highly complex cases the trial may last several years.
Do the parties or judges control the procedural timetable, or are deadlines laid down by codes or rules?
England and Wales
The judges have full control of the procedural timetable. Certain deadlines are prescribed by the Civil Procedure Rules or the rules of the particular court in which the proceedings are taking place.
In broad terms, judges control the procedural timetable, which is at the same time laid down by procedural rules. In line with the above, there are deadlines that affect both the parties and judges and court clerks. For instance, the law establishes a twenty-day period to file a defence claim. And for certain procedural matters, the law establishes a time period for the judge or the court clerk to decide on.
The judges have full control of the procedural timetable. Most procedural deadlines are laid down in the Code of Civil Procedure but the judges can derogate them.
Judges control most aspects of the procedural timetable, but there are certain statutory deadlines that cannot be extended, such as the time limit of two weeks to acknowledge service after the service of a claim within the jurisdiction or the time limit of one month for the filing of an appeal.
The procedural timetable is in general determined by the Code of Civil Procedure and the National Rules of Procedure. In principle, no postponement shall be granted outside the procedural timetable. However, (one of) the parties may request the court for a postponement (with reasons) in case of compelling reasons or force majeure. It is then up to the court whether a postponement is granted, and for what term.
Judges control most aspects of the procedural timetable. The most notable deadline laid down by law is for filing an appeal, which is two weeks from receiving the judgment with a written justification.
Can you get a claim struck out if the claimant does not actively pursue the claim?
England and Wales
Delay by the claimant can amount to an abuse of process and so justify the proceedings being struck out. If the claimant had a legitimate reason for pausing proceedings, that will not be an abuse but if it appears to the court that the claimant no longer wishes to pursue the claim, the court may exercise its discretion to strike out the claim.
The court clerk has the obligation to give the proceedings the corresponding progression ex officio. However, if despite the court clerk's initiative, no procedural activity driven by the parties takes place within two years if the case is in first instance, and within one year in the case of appeals, the proceeding and/or the appeal will be deemed to have been abandoned.
According to Article 181 of the Italian Code of Civil Procedure, if the claimant does not appear at the first hearing and you do not request that the case be heard in its absence, the judge must set a new hearing. If the claimant also fails to appear at this hearing, the judge declares the case dismissed.
If a claimant does not appear at a hearing, the defendant can apply for a default judgment dismissing the claimant’s claim. If a claimant misses a deadline for a written submission, the delayed submission might be refused by the court at its discretion. The court will review if admission of the late submission would delay the proceedings and if the party presents sufficient excuse for the delay.
If a procedural act (such as submitting a procedural document) has not been taken by the claimant for more than twelve months, the court shall, at the request of the defendant or on its own motion, set a date on which the defendant may demand a prejudiced right of continuing an action.
It is not possible for the court to strike out a claim if the claimant does not actively pursue the claim. In case the claimant did not include a written motion to hold the trial in his absence, the absence of the claimant may result in the court suspending the proceedings. The proceedings will be discontinued if the claimant does not apply for resuming the proceedings within three months of the date of suspension.
How long do appeals generally take to be heard?
England and Wales
Again, this depends on the particular case but an appeal judgment might be expected after about seven months from the trial judgment (the process is usually quicker than a first instance trial because generally no fresh evidence is allowed).
Procedural law does not establish any timetable in this regard. It depends on the type of appeal, the subject matter and the circumstances of the court that is going to hear the appeal. From our experience, it usually takes six, eight or even ten months for appeals to be heard.
Appeals last on average two or three years. Also the length of the appeal proceedings considerably depends on the local court.
An appeal normally takes between one and a half to two and a half years, depending on the complexity of the case and the workload of the respective court of appeal. The court of appeal usually reviews the cases between three to six months after the filing of the appeal. It is common that during this time, and prior to rendering a judgment, the court of appeal informs the parties by order that the appeal has no chance of success. This gives the appellant a chance to withdraw the appeal.
Please see the answer to How long can you (roughly) expect it to take for a civil/commercial claim to get to trial? above. In a standard case on the merits in appeal, without any postponement of procedural acts, an oral hearing is expected within a year after the respondent appeared in the proceedings.
The appeals generally take from one to one and a half years to be heard.