Court procedurei Overview of court procedure
The main source of civil procedural law in disputes is the Civil Procedure Code, which covers procedures at all levels of courts, provisional measures before judgment, and execution of court judgments or orders. Criminal procedures are primarily governed by the Criminal Procedure Code.
A civil proceeding is commenced by a plaintiff submitting a complaint to a court of first instance within a competent jurisdiction. Service of the claim is made by court officers to the named defendants.
Any person intending to bring a civil case to the court must have one of two grounds prescribed by the Civil Procedure Code: his or her rights or duties under the civil law are disputed, or there is a necessity to exercise the rights through the court.2 The first scenario is a situation in which a person's actions cause disruption, irritation, damage or infringement of another's legal rights, which are the rights to property, money, life, body, family, honour, reputation or any other rights in accordance with any legitimate agreement and as stipulated by law.3
The second scenario is when the court's approval or acknowledgement is a legal prerequisite to exercising certain actions or rights, such as a request for the court's approval for entering into a juristic act on behalf of a minor, a request for appointing an administrator of an estate or a request for the court's order in determining a person as incapacitated.4 This is referred to as a non-contentious case.ii Procedures and time frames
The plaintiff must file a plaint in writing to the court. Within seven days from the filing of the plaint, the plaintiff must formally request the court officer to serve a summons on the defendant. Within 15 days of receipt of the summons (or 30 days if the summons is left or posted at the defendant's premises) the defendant must file a written answer to the court (an extension may be granted). The defendant may also make a counterclaim in its answer if the matters alleged relate to the original plaint.
Approximately eight to 10 weeks from the date of filing the complaint, at a preliminary hearing, the court may determine the issues in dispute for which further proceedings will be conducted.
For taking evidence, the parties must present their witnesses to testify before the court. The hearing dates will be fixed on a continuing basis. Normally, the presentation of witnesses will be concluded within 18 months from the date of filing the complaint. After the presentation of witnesses by both parties, the court may allow the parties to submit closing statements to the court. Usually, it takes approximately two to three months after the last day of presentation of witnesses for the court of first instance to render a judgment.
Either party (win or lose) may file an appeal within one month of the date the judgment is rendered by the court of first instance. In practice, either party may also request an extension of the period for the appeal of one month each time. It is upon the court's discretion whether to grant the extension request.
The other party must file a reply to the appeal within 15 days of receipt (plus 15 days if the summons is posted at the recipient's domicile) of the appeal (an extension may also be granted in the same manner as a request for extension to file an appeal). After submission of the reply to the appeal, the court of first instance will hand over the case file, together with the appeal and reply to the appeal, to the Court of Appeal for consideration.
The anticipated timeline for the Court of Appeal to consider an appeal and render a judgment is approximately six to eight months, counting from the date that the Court of Appeal receives the case file from the court of first instance. There is no hearing in the Appeal Court, only submission of the documents.
The parties are generally prohibited from appealing against a judgment by the Appeal Court, except if leave to appeal is granted by the Supreme Court. Therefore, to appeal to the Supreme Court, the party wishing to appeal must prepare and submit an application to seek leave to appeal to the Supreme Court in addition to preparation of the appeal. The application and the appeal have to be submitted together to the Supreme Court. Only after leave is granted will the appeal proceed, and the other party must reply to the appeal.
Leave to appeal to the Supreme Court must be lodged within one month of the date of the Appeal Court judgment (an extension may be granted). The other party can file an objection to the leave to appeal within one month of receipt of the leave to appeal (an extension may also be granted).
The Supreme Court renders an order on whether the leave to appeal is granted within a time frame that varies from six to eight months from the date it receives the file from the lower court. If leave to appeal is granted, the other party must file an answer to the appeal within 15 days of the date of the order granting leave to appeal (an extension may be granted). The Supreme Court will render a judgment approximately two or three years from the date it receives the file back from the lower court.
Once the court renders judgment or an order requiring that execution be carried out against a judgment debtor, it will issue a decree immediately after the judgment or order is pronounced or deemed to have been pronounced, and it will be deemed that the judgment debtor is informed of the decree on that date. Generally, the court will specify a period of one month within which the decree must be complied with. If the period of time to comply has elapsed and the judgment debtor has yet to comply, the judgment creditor may apply for a writ of execution to seize or attach any property belonging to the judgment debtor.
If the losing party wishes to appeal, it may file, in addition to the appeal, a motion to stay the execution of judgment of the court of first instance. If the court grants the stay, it may order the losing party to put down security, which is generally the amount the court of first instance awarded to the winning party, plus interest accumulated up to the expected date of the appeal (approximately two years from the date of depositing the security).
When requesting a Thai court to issue an injunction order, generally the plaintiff must first file a lawsuit with the court. A motion requesting the court to issue the injunction can then be filed with the court. Upon receiving the motion, the court will schedule a hearing to inquire the request and decide whether there are grounds to issue the injunction order. It takes approximately two to six months from filing of the motion until an injunction order is granted.
Under Thai law, at the time of filing an injunction and in the case of emergency, the filing party is also entitled to file a motion asking the court to issue the injunction on the same date of the application on an emergency basis, as opposed to setting a hearing on the injunction some months after the filing (i.e., an injunction on a normal basis).iii Class actions
In Thailand, class action law is relatively new, having come into effect in 2015, and represents a big change to the Thai litigation system. It will inevitably increase the magnitude of risk to businesses, as class action lawsuits act as a multiplier of damages in litigation.
The Act to Amend the Civil Procedure Code (Class Action Act)5 only provides a framework for the class action regime, and it empowers the president of the Supreme Court to issue detailed regulations on the class action process.
Under the Class Action Act, Thailand has adopted an opt-out system. This means that an injured person will automatically be a member of the class if he or she fits the criteria of the certified class and does not elect to opt out.
Once a class action lawsuit is filed, there will be a motion for class certification. If the court certifies the class, all consumers in Thailand who are affected will automatically be bound by the result of the class litigation unless they opt out of the class. If the plaintiffs win the litigation, the class members are entitled to compensation awarded by the court. If the plaintiffs lose, class members who did not opt out are bound by the judgment and will no longer have a right to take action against the defendant on the same ground.
To initiate a class action lawsuit, the plaintiffs' lawyer must file a complaint together with a motion for class certification. In certifying the class, the court must be satisfied as to the commonality of the issues, the size of the class, the efficiency of the class action proceedings as compared with normal civil proceedings using a joinder, and the adequacy of the lawyer and plaintiffs representing the class.
Once the court certifies a class, all persons identified as members of the class must be notified. In addition to any mailings, a public notice must be published in a prominent newspaper for three consecutive days.
If the court later finds that class action proceedings are not appropriate to protect members of the class even after the class is certified, it may de-certify the class and direct the plaintiffs to initiate normal civil proceedings.
If a class action is successful, the class will receive the full amount of awarded damages, and its lawyer will receive an award of not more than 30 per cent of the awarded damages.
Several class action lawsuits have commenced in Thailand, and the new class action regime is expected to have a substantial impact on many areas of litigation, following both local and global trends.iv Representation in proceedings
In Thailand, any party can personally conduct his or her case and carry out all of the proceedings as he or she thinks fit in his or her interest.6 Alternatively, he or she may appoint one or more licensed lawyers to conduct the case and carry out the proceedings.
A lawyer appointed by a party has the power, on that party's behalf, to conduct the case and carry out all proceedings as the lawyer thinks fit in order to safeguard the interests of the party. If any proceeding involves the disposal of any of the party's rights, such as admission of the opposing party's claim, withdrawal of the party's claim, compromise, or renunciation or exercise of the right to appeal or to apply for a new trial, the lawyer will have no power to carry out such proceeding without express authority from the party appointing the lawyer. Express authority may be specified in a deed of appointment for that particular case or may be given subsequently and separately in one or more powers of attorney.7
A person who has not registered with and received a licence from the Lawyers' Council under the Royal Patronage is prohibited from being a lawyer and from conducting any case in court.8 Under the Thai Lawyers Act, only a natural person can apply for registration and receipt of a licence from the Lawyers' Council under the Royal Patronage. As a result, it is not possible for legal entities other than natural persons to represent themselves in court proceedings.v Service out of the jurisdiction
The Civil Procedure Code has specific provisions that accommodate service out of jurisdiction. If a defendant is not domiciled in Thailand, a summons and plaint instituting a case must be served to the defendant at the domicile or business office of the defendant outside Thailand.9 The domicile of a juristic person is the place where it has its principal office or establishment, or that has been selected as a special domicile in its regulation or constitutive act.10
For other motions, pleadings, statements or documents, if the recipient is not domiciled in Thailand but has carried out business in Thailand in person or via an agent, or there is an agent to receive pleadings and documents or a lawyer to proceed with a case in Thailand, notices to the recipient or agent or lawyer will be served at the place used to carry out the business by the recipient or agent, the place used as the residence of the agent, or the domicile or office of the lawyer in Thailand.11 If the recipient does not carry out business in person in Thailand, or there is no agent or lawyer in Thailand, notices will be served by posting at the court.vi Enforcement of foreign judgments
Thai laws have no specific provisions enabling Thai courts to directly recognise and enforce foreign court decisions. In addition, there are no bilateral agreements with other countries on the enforcement of foreign court decisions in Thailand. As a result, a foreign court decision cannot be enforced in Thailand. Thai courts will not enforce a foreign court decision as if it were a Thai court decision.
However, subject to Thai laws regarding Thai court jurisdiction, a judgment creditor in a foreign court decision can initiate a fresh lawsuit with a competent Thai court and adduce the foreign court decision as a piece of evidence of debt to prove its case. Based on a Thai Supreme Court precedent, a foreign court decision is only a source of obligation (a debt) based on which the creditor can file a complaint to claim debt under the foreign court decision.12 Only after the Thai court makes a decision can the plaintiff then enforce the debt based upon the Thai court decision.
For initiating a fresh claim in Thailand to claim debt under a foreign court decision, see Section III.ii.vii Assistance to foreign courts
In civil and commercial matters, Thai laws do not have specific provisions enabling Thai courts to directly provide assistance to foreign courts. As a result, assistance to foreign courts must generally be sought via diplomatic channels.
Thailand has agreements on judicial cooperation with Laos, Indonesia, China, Australia, Spain and Vietnam only. Assistance requested and provided to those countries must be done through the central authorities of each contracting party. The central authority for Thailand is the Office of Judicial Affairs of the Ministry of Justice. Assistance available under the agreements on judicial cooperation includes service of documents, taking evidence and exchange of judicial information.viii Access to court files
Normally, the hearing of a case will take place in the presence of the parties attending the court and in open court. This means that the court proceedings will be open to the public, and members of the public can attend in normal circumstances.
However, the Civil Procedure Code only grants the right to the following parties to ask the court for inspection of documents contained in the case file or to make copies: every party to the case; every witness regarding witness testimony; and persons having a legitimate interest or reasonable grounds to do so.13
Members of the public do not normally have access to information about proceedings that have been completed. Only some Supreme Court judgments would be made available in summary form to the public.ix Litigation funding
Litigation funding by a non-interested third party is not a common practice in Thailand. There is no statutory provision that prohibits a third party from funding litigation. However, based on a Supreme Court precedent, litigation funding by a funder who has no legal interest in a claim, but who is to receive a benefit from the proceeds of the claim if the party wins the case, is likely to be considered as contrary to public policy or morality. This kind of funding, therefore, is likely to be void and unenforceable.Criminal litigation
Under the Thai system, there are two methods under which a party can commence a criminal claim: directly through a criminal court or through the police.
For direct filing, the plaintiff will submit a criminal complaint to a competent criminal court. The court will set a preliminary hearing date to determine whether the complaint is sufficiently grounded to merit a criminal trial. At the preliminary hearing, the plaintiff can present witnesses and evidence to support its complaint. The alleged offenders will have a full opportunity to cross-examine the witnesses and evidence presented. An order to accept the case cannot be appealed. An order to dismiss the case can be appealed. If the criminal court accepts the case for trial, the alleged offenders will become defendants.
In making a direct filing with criminal courts, the complainants step into the shoes of the prosecutor and are responsible to prosecute the case by presenting witnesses and evidence to establish the defendant's wrongdoing beyond reasonable doubt.
Under the method of filing a complaint with the police, the injured party will file a criminal complaint with the relevant police as to the injury sustained and the parties responsible. The police will conduct an investigation and prepare a recommendation on whether or not to pursue a criminal action against the accused and send the same to the public prosecutor. If the public prosecutor finds that there are grounds for a criminal case, it will file a complaint with the competent criminal court. In such case, the public prosecutor is the plaintiff, but the victim may join the public prosecutor to assist in prosecuting the case.