Litigation

Court system

What is the structure of the civil court system?

The Court of Justice is divided into three levels, comprising the court of first instance, court of appeal and the Supreme Court. The court of first instance is further divided into general civil courts and specialist courts.

General civil courts comprise district courts and provincial courts. District courts have jurisdiction to hear small claims with value below 300,000 baht and provincial courts have jurisdiction over claims exceeding 300,000 baht, non-monetary cases, non-contentious cases and all other civil claims that are not subject to the jurisdiction of other civil courts. At least two judges would constitute a quorum for the purposes of hearing and determining any matter in the provincial courts, whereas only one judge is required for district courts.

The court of appeals hears appeals from the general civil courts. The final appellate court in Thailand is the Supreme Court. At least three judges must hear the appeal in the court of appeals and the Supreme Court. No oral arguments and witness examination will take place at the appeal stage.

Excluding the general civil courts, the following five types of specialist court in Thailand have jurisdiction over disputes concerning certain specialised subject matters:

  • the intellectual property and international trade court;
  • the tax court;
  • the labour court;
  • the bankruptcy court; and
  • the juvenile and family court.

 

Career judges with appropriate background and expertise sit in specialist courts. Quorum and types of judges for the purposes of determining any matter in the specialist courts are specified under the specific legislations in respect of the matter of disputes. For example, a quorum of the labour court consists of the career judge and associate judges for the employers and the associate judges for the employees, where the number of the associate judges for each employer and employee shall be equal. Any appeal against the judgment or decision of the specialised court shall be made to the court of appeal for specialised cases.

Judges and juries

What is the role of the judge and the jury in civil proceedings?

There is no jury system in Thailand. The accusatorial system applies for most civil cases, except in some specialist courts and specific case types. Judges must decide the issues of fact and law based on the facts presented by the parties and judges are not empowered to request additional facts and evidence on their own accord.

Limitation issues

What are the time limits for bringing civil claims?

The statutory time limits or periods of prescription for bringing civil claims vary significantly depending on the nature of the claims as prescribed in the Civil and Commercial Code. The time limit for claims for which no specific period is prescribed by law is 10 years. A claim for wrongful act is barred one year after the day that the wrongful act and the person bound to make compensation becomes known to the injured person, or 10 years from the day of commission of the wrongful act. However, if the damages are claimed on account of an act punishable under the criminal law for which a longer prescription is provided, that longer prescription will apply.

The statutory time limit cannot be extended or suspended by mutual agreement of the parties. Nevertheless, for debt-recovery claims, the time limit may be interrupted if the debtor has acknowledged the debt towards the creditor by written acknowledgment, making partial payment or payment of interest, giving securities, or any act implying the acknowledgment of debt. In this case, the time limit begins to run when the interruption ceases. 

The statutory time limit in civil claims is not a matter of public policy. As such, if the defendant does not raise this matter in an answer, the court would not have authority to dismiss the claim on grounds of expiry of time limits.

Pre-action behaviour

Are there any pre-action considerations the parties should take into account?

Under civil procedure law, there is generally no requirement for pre-action exchange of documents or pre-action disclosure orders before issuing proceedings, except for specific requirements applicable to certain claims. In general, it is common for a plaintiff to issue a demand letter to the defendant before issuing proceedings for breach of contract or outstanding payment.

There are specific requirements for certain claims as prescribed by the Civil and Commercial Code. For example, a mortgagee who wishes to enforce a mortgage must serve a legal notice on the debtor or mortgagor and wait for the notice period to lapse before issuing proceedings.

Where a fixed period for performance is not specified in a contract, before issuing proceedings, a party must send a legal notice to the other party requiring performance of obligations within a specific period.

Starting proceedings

How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?

The plaintiff files a complaint with a request for summons and a copy of the complaint to be served on the defendant, and pays a court filing fee and a service of pleadings fee. After the complaint is accepted by the court, a summons and a copy of the complaint will be served on the defendant by the court officer.

There is no pretrial case management system in Thailand. However, in 2012, the Thai courts implemented a computer system to ease caseload monitoring, thus reducing the backlog.

Timetable

What is the typical procedure and timetable for a civil claim?

According to the Thai Civil Procedural Code, once summons and copy of the complaint have been effectively served, the defendant has 15 or 30 days from the date of service, depending on the means of service, to file an answer or counterclaim. If the complaint is personally served on the defendant or any person who is authorised to accept service, the defendant has 15 days from the date of service to file an answer. If the service is served by posting to the premises of the defendant, it will take effect 15 days after the posting date. Accordingly, for service effected by way of posting, the defendant has in total 30 days to file an answer. That said, parties usually seek an extension to answer the complaint and the court generally grants such extension upon reasonable request.

 

Settlement of issue

Typically 45 to 60 days after the filing of a complaint, the first hearing will be held for the purposes of determining the issues in dispute and scheduling a trial hearing. The court will examine the allegations and evidence filed by the parties, direct any party to adduce evidence first or afterwards, and schedule a date for trial. If the court views that a settlement may be reached between the parties, the court may schedule a mediation hearing and appoint a mediator to assist in mediation.

 

Trial

The court will schedule the hearings for the taking of evidence of each party. The number of hearings depends on the number of witnesses each party wishes to present, the amount of documentary evidence and the complexity of the case.

 

Judgment

Once the trial is completed, the courts will schedule the hearing to read the judgment. Parties may request to file a closing statement with the court within the given time frame.

The length of proceedings from filling of complaint through the judgment date is one year or longer at the court of first instance.

Case management

Can the parties control the procedure and the timetable?

Parties cannot control the procedure, timetable or the dates of the trial hearings. Once the preliminary hearing date has been fixed, parties may seek to reschedule on the grounds of scheduling conflict. If the trial cannot be concluded within the timetable imposed by the court for reasons such as protracted examination proceedings, the court may further reschedule or fix another hearing date.

Evidence – documents

Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?

There is no such duty under the law. Parties have the right to determine the evidence to be presented to court in support of their case. However, any party may request the court to issue an order to subpoena a document, either from opposing party or third party, within the given time frame, unless there are reasonable grounds for refusal, such as confidentiality or possibility of causing damages to third parties if documents are produced.

Evidence – privilege

Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?

Attorney–client privilege is recognised under Thai law. While the Regulations of the Lawyers Council on the Conduct of Lawyers BE 2529 (AD 1986) prohibit lawyers from disclosing confidential information about clients unless clients have consented or a court order has been obtained, those Regulations only apply to licensed lawyers who have been registered with the Lawyers Council of Thailand.

Nevertheless, it is a criminal offence under section 323 of the Thai Criminal Code for legal advisers, consultants or professionals, including their staff, to disclose confidential client information that may cause harm to the client. Any licensed or non-licensed lawyers including in-house lawyers are, therefore, bound by this confidentiality obligation.

A court order for subpoena would override attorney–client privilege and confidentiality obligations.

Evidence – pretrial

Do parties exchange written evidence from witnesses and experts prior to trial?

Thai laws do not require parties to exchange the written statements of witness prior to trial. However, parties may request the court for submission of written statements ahead of the examination in chief. If that request is granted by the court, written statements will be submitted to the court and served on the opposing party no less than seven days before the trial of each witness.

Under the Civil Procedural Code, parties are also required to submit to the court a list of evidence and a copy of documentary evidence that the parties intend to present at trial and serve them on the opposing party no less than seven days before trial. Failure to do so would result in inadmissibility of evidence, unless the court rules otherwise, taking into account special circumstances.

Evidence – trial

How is evidence presented at trial? Do witnesses and experts give oral evidence?

Witnesses must be present at trial. Documentary and physical evidence is presented during the examination-in-chief to support testimony. Once the examination-in-chief is finished, the opposing party gets an opportunity to cross-examine the witness and, in doing so, may present his or her evidence. After the cross-examination, the party is entitled to re-examine the witness with regard to matters raised by the witness during cross-examination.

All proceedings are conducted in Thai. If a foreign witness is required, he or she would need to testify through a translator. Documents made in a foreign language must be translated into Thai and only the original documents are admissible as evidence. Copies of those documents are admissible where parties mutually agree to admission; the original document has been lost or destroyed for reasons beyond the parties’ control or it is in the interest of justice to produce a copy; the original document is in official custody or control; or the other party does not object to that admission.

The court may record the trial at its discretion. Often, only necessary facts related to the issues of the case are recorded. In practice, the courts generally order parties to prepare the written statements instead of giving oral evidence for the convenience of all parties. That written statement is considered to be the examination-in-chief and does not bar the right of the witness to give further oral evidence before the court. The parties must submit the written statements to the courts and opposing party no less than seven days before the trial.

Interim remedies

What interim remedies are available?

Interim remedies available upon application at any time before the court renders judgment include seizure or attachment of orders, restraining orders, orders directing to government authorities to suspend or revoke any registration, and orders for provisional arrest or detention. These orders may only be granted in respect of proceedings Thailand. Search orders are not available for civil proceedings.

In addition, emergency injunctive remedies are available by filing a separate motion establishing the emergency with an application for the injunctive remedies. If the court is satisfied of the urgency and grounds of the application, the court will immediately call the applicant for ex parte examination.

When granting orders for interim remedies, the court often requires the applicant to provide security in the amount deemed appropriate by court, as guarantee for any losses that may be suffered by the defendant arising from the interim orders.

Remedies

What substantive remedies are available?

Courts are empowered to award punitive damages but rarely do so. Punitive damages have been officially prescribed in several legislations such as the Trade Secret Act, the Promotion and Development of Quality of life of Persons with Disabilities Act, the Product Liability Act, the Consumer Case Procedural Act and the Personal Data Protection Act.

Courts are empowered to render judgment ordering payment of interest on money judgments up to the date of full payment at the contractual rate agreed between the parties, or at the statutory rate of 7.5 per cent.

Enforcement

What means of enforcement are available?

After the court renders a judgment, the court will issue a decree requiring a judgment debtor to perform in accordance with the court judgment within a certain period of time. If the judgment debtor fails to comply with the judgment, the judgment creditor is entitled to request the court to issue writ of execution against the judgment debtor where an execution officer will be appointed for the purposes of  seizing the property, executing attachment of claims against third parties and liquidating the seized property by auction. The judgment creditor is, however, responsible for locating the debtor’s assets.

Public access

Are court hearings held in public? Are court documents available to the public?

Court hearings in civil proceedings are open to the public. However, the court may proceed with a hearing behind closed doors for public interest reasons or to prevent the disclosure of all or any of the facts or circumstances of the case from the evidence taken.

Court documents such as pleadings, witness statements and court orders are not available to the public. In addition, third parties that have legitimate interest or a reasonable ground may request access to court documents.

Costs

Does the court have power to order costs?

Courts have the power to order the losing party to pay the successful party’s costs. The amount is determined at the court’s discretion, taking into account the complexity of the case, time devoted and the amount of work carried out by lawyers, subject to the statutory maximum rates tied to the value of the claim. In any event, large legal fee awards are not common in Thailand.

The plaintiff is required to provide security for the defendant’s costs upon request by the defendant, at any time before judgment, under the following special circumstances: if the claimant is not domiciled in Thailand or does not carry on business in Thailand and defendant can prove that the claimant does not have property liable for execution in Thailand, or where there is strong reason to believe that the plaintiff will evade payments of costs when losing the case.

Funding arrangements

Are ‘no win, no fee’ agreements, or other types of contingency or conditional fee arrangements between lawyers and their clients, available to parties? May parties bring proceedings using third-party funding? If so, may the third party take a share of any proceeds of the claim? May a party to litigation share its risk with a third party?

There are no specific rules governing contingency or conditional fee arrangements between lawyers and clients. However, according to the Supreme Court judgments, lawyers are generally prohibited from having any interest in the outcome of the case and such arrangement is generally contrary to public policy and good morals. Therefore, such arrangement is void and unenforceable in Thai courts.

Third-party funding is not a recognised concept under Thai law. However, based on the Supreme Court judgments, the courts tend to view any form of third-party funding without any interest in the litigation or with intent to profit from the disputes between other parties as contrary to public policy and good morals. Third-party funding is therefore void and unenforceable in Thai courts.

Insurance

Is insurance available to cover all or part of a party’s legal costs?

Insurance for a party’s legal costs is not extensively available in Thailand. However, it is generally available overseas and may include the costs of litigation conducted in Thailand.

Class action

May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?

On April 2015, an amendment was made to the Civil Procedure Code introducing class action proceedings into the Thai legal system. Class action lawsuits in Thailand can only be filed by the plaintiff, meaning that there is no defendant class action. The Civil Procedure Code does not specify the number of people required to file a class action claim. All courts in Thailand except for district courts have jurisdiction over class action claims. Cases that are eligible for class action are as follows: wrongful act; breach of contract; right claims that derive from other laws, such as environment laws, consumer protection laws, labour laws, securities and exchange laws; and trade competition laws.

Appeal

On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?

For general civil cases, appeal to the court of appeals must be made within one month of the date of the decision of the court of first instance, and a further appeal to the Supreme Court must be made within one month from the date of decision of the court of appeals.

Appeals on questions of fact where value of property or amount in dispute in the court of appeals does not exceed 50,000 baht will be prohibited. Appeals on questions of law are permissible.

Appeal to the Supreme Court is not an automatic right. Parties need to request permission to appeal from the Supreme Court and permission will only be granted if the appeal is a significant matter worthy of clarification. Section 249 of the Civil Procedure Code sets out ‘significant matters’ as follows:

  • matters related to the public interest or public policy;
  • when a court of appeals determines a significant question of law in a manner of discrepancy or contrary to a Supreme Court precedent;
  • when a court of appeals determines a significant question of law in its judgment or order without citing a Supreme Court precedent;
  • when the judgment or order of a court of appeals is contrary to the final judgment or order of other courts;
  • for the purpose of developing legal interpretation; and
  • other significant questions according to the regulations of the president of the Supreme Court.

 

If permission is not granted by the Supreme Court, there will be no further appeal in any form and the case is final.

Foreign judgments

What procedures exist for recognition and enforcement of foreign judgments?

Thailand is not a party to any conventions on recognition and enforcement of foreign judgments. There are no specific rules governing recognition and enforcement of foreign judgment. However, Thai courts accept foreign judgments as evidence in a new trial. The only option for a judgment creditor to enforce a foreign judgment is by commencing new proceedings in Thai courts. Even if the foreign judgment is based on the merits of the case, the plaintiff must present all key witnesses and testimony in the new proceedings. In addition, the plaintiff must show that the foreign judgment is a final judgment in the relevant foreign jurisdiction where all avenues of appeal have been exhausted. The grounds of foreign judgment would also need to be clear.

Foreign proceedings

Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?

Thailand is not a party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970. However, Thai courts may issue a letter rogatory to the foreign court to examine the witness in other jurisdictions and transmit a deposition back to a Thai court on the basis of judicial co-operation or through diplomatic channels. Likewise, the court will assist in obtaining the documentary evidence required through the same diplomatic channels for use in civil proceedings in other jurisdictions.

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1 April 2020