CHAPTER
26
CIVIL
LITIGATION
In this Chapter, we discuss the
process of civil litigation in Thailand. In general, civil procedure is
governed by the Civil Procedure Code. However certain special courts such as
the Labor Court or the Bankruptcy Court may have their own special rules of
procedure that apply only to that particular court.
The Court system The court system for most civil claims is divided into three levels: a
court of first instance, the Court of Appeal and the Supreme Court. In some
cases, there is only one right of appeal from the court of first instance
direct to the Supreme Court, bypassing the Court of Appeal. For example,
appeals against judgments of the Labor Court and the Bankruptcy Court are
generally made direct to the Supreme Court.
In Bangkok, many civil cases start
in the Civil Court. However, there are several special courts, namely the
Revenue Court, the Labor Court, the Juvenile and Family Court, the
Constitutional Court, the Administrative Court, the Bankruptcy Court and the
Intellectual Property and International Trade Court (“IPITC”). Criminal cases
are heard in the Criminal Court. Petty cases are heard in a District Court.
In provinces outside Bangkok, both
civil and criminal cases start in the Provincial Court. Some of the larger
provinces have District Courts for petty cases. There are also Labor,
Bankruptcy and other special courts established in some of the larger provinces
in Thailand.
The courts of first instance, except
for the District Courts, sit in tribunals of three judges, with two judges constituting
a quorum. The Court of Appeal and the Supreme Court also sit in tribunals of
three judges.
Commencing a civil case from abroad To commence a civil case from abroad, the plaintiff must execute a
power of attorney, duly notarized and authenticated by a Thai Embassy or
Consulate, appointing a person in Thailand to prosecute the case. The attorney‑in‑fact
would then normally appoint an attorney‑at‑law to actually issue the
proceedings.
Court fees Where the case concerns property or money, a court fee equal to 2.5% of
the claim, but not exceeding Baht 200,000, must be paid to the Court. This sum
may be wholly or partially included in any judgment favorable to the plaintiff.
A litigant who appeals to the Court of Appeals or the Supreme Court must likewise
pay a court fee equal to 2.5% of the claim but not exceeding Baht 200,000.
Therefore, it is possible that in a case appealed to the Supreme Court, court
fees equalling 7.5% of the claim have been paid.
Complaint A person initiating a civil action must file a complaint in writing
with an appropriate court of first instance clearly setting forth the nature of
his claim, the relief sought and the allegations upon which the claim is based.
Limitation period The complaint must be filed within the relevant limitation period. The
limitation period varies from one to ten years, depending on the nature of the
claim.
Summons Upon acceptance of the complaint by the court, a summons to answer will
be issued.
Within seven days from the entry of
the complaint, the Plaintiff must request the court office to serve the summons
on the person name as defendant. Failure to request service may result in the
Plaintiff being deemed to have abandoned his complaint.
Answer Within 15 days of the service of the summons, the Defendant must file a
written Answer with the Court, clearly setting out what parts of the
Plaintiff’s claims he admits and the parts that he denies.
If the Defendant fails to answer
within the specified time limit, he is deemed to be in default of Answer.
Within 15 days of such default, the Plaintiff must apply to the court for an
order declaring such default. Such application is deemed to be an expression of
the Plaintiff’s intention to proceed with the case.
Counterclaim and Answer to Counterclaim When the Defendant files the Answer, he may make a counterclaim
relating to any matter of complaint that he has with the Plaintiff. If a
Counterclaim is filed, the Plaintiff must file an Answer to the counterclaim
within 15 days or within an extended period granted by the Court.
Settlement After the submission of the Complaint, the Answer, the Counterclaim and
the Answer to Counterclaim (if any), the court will fix a hearing date for the
Settlement of Issues, and notify both parties not less than 30 days prior to
the date of hearing.
At the Settlement of Issues hearing,
the court will examine the pleadings and the accounts of the parties, and
declare which issues are in dispute and which issues are not.
The Plaintiff or the Defendant may
amend their claims, defences, allegations or contentions in their pleadings,
provided they apply for permission to amend before the date of the Settlement
of Issues hearing.
Disclosure of documents There are no procedural rules that enable a party to compel other
parties to disclose relevant documents prior to trial. If a party believes that
a person has documents in his possession that are relevant to the case, then he
must apply to the Court for the issue of a subpoena against that person to
produce such documents at the trial. If such documents are produced at trial,
and time is necessary to consider their contents, then it is possible to apply
for an adjournment on these grounds.
First hearing Once the Settlement of Issues hearing has been completed, the court
will fix the first date for taking evidence. This will normally be fixed on one
day, one month to six weeks later.
If on the first day of taking
evidence either of the parties fails to appear, and has not applied for an adjournment,
such party will be deemed to be in default of appearance. If both parties are
in default of appearance, the case will be dismissed. In such case, the
Plaintiff may still commence fresh proceedings. If the Plaintiff is in default
of appearance, the case will be dismissed. However, if the Defendant notifies
the court that he desires to proceed with the case, the trial will proceed in
the absence of the Plaintiff. If the Defendant is in default of appearance, the
trial will proceed in his absence.
Except in certain special courts
such as the IPITC, the trial does not take place on consecutive days. After the
first hearing to take evidence, the case will be adjourned for four to six
weeks for another day of taking evidence, and so on. It can therefore be seen
that a trial which lasts for eight days, may take 12 months for the taking of
evidence to be completed.
Evidence Oral evidence may be given by any person who has directly and
personally seen or heard, or has knowledge of the facts relevant to the
adjudication of the case. All court proceedings are required to be conducted in
the Thai language, except in some special courts, such as the Intellectual
Property and International Trade Court, where the court may permit the trial to
be conducted in English. Documents made in a foreign language must be
translated into Thai. Only original documents are admissible in evidence,
except where:
Appeals
Petition for appeal Generally, any judgment rendered by the Court of first instance may be
appealed against, by the party against whom the judgment is given, or by any
party to the case who is not satisfied with the judgment. In the Civil Court,
no appeal can be made in cases involving money or property where the amount in
dispute is less than Baht 20,000.
An appeal must be lodged within one
month from the date of judgment by filing a written Petition with the Court of
first instance that issued the judgment. Usually the Appellant must deposit
with the Court sufficient money (or adequate security) to cover the judgment
debt, if he is the judgment debtor, and any future court costs.
Court of Appeal The Court of first instance will then transfer the case to the Appeal
Court. The Court of Appeal will make its decision based solely upon the
documents forwarded by the Court of first instance, the Petition of Appeal, and
the Respondent's Answer to the Petition of Appeal. No new evidence can be
submitted. Verbal argument is generally not permitted, except in certain
circumstance. Proceedings in the Appeal Court are likely to take between one
and two years.
Decision on appeal Once it has examined the case, the Court of Appeal may:
Note that in some cases, appeals from
the Court of first instance are made direct to the Supreme Court, and bypass
the Court of Appeal.
Supreme Court Once judgment has been given by the Court of Appeal, or in cases where
the right of appeal from the Court of first instance is made direct to the
Supreme Court, either party may lodge an appeal to the Supreme Court.
Appeals from the Court of Appeal to
the Supreme Court may be made only on an issue of law where the matter in
dispute, in cases involving money or property exceeds Baht 50,000. The Supreme
Court will review the appeal. Its judgment will be based solely on the Petition
for Appeal and other written documents forwarded by the lower court(s). No new
evidence may be submitted. The judgment of the Supreme Court is final. Proceedings
in the Supreme Court may last from 18 months to two years.
Enforcement of judgement Once a final judgment has been given, a decree of judgment will be
issued. Generally, the Court will specify a period of one month from the time
of service or acknowledgement of judgment, within which the judgment must be
complied with.
Writ of execution When the period of time to comply with the judgment has elapsed and the
judgment debtor has not paid the judgment debt or otherwise complied with the
judgment, the judgment creditor may apply for a writ of execution. This will
enable an executing officer to secure adequate money for payment of the
judgment through seizure or attachment of property belonging to the judgment
debtor. A writ of execution is valid for 10 years.
Court fees Court fees are as set out in the Civil Procedure Code:
Interlocutory orders If the Defendant intends to transfer, sell or dispose of the whole or
part of his property, or remove it from the jurisdiction of the court, the
Plaintiff may apply for an order restraining such acts. If the court grants the
application, the applicant is required to deposit with the court such sum of
money as the court thinks suitable as security for any loss that the other
party may suffer or incur. The amount will depend on the amount of the claim.
Lawyers' fees The party against whom judgment is given will usually be ordered to pay
the other party’s lawyers’ fees in an amount specified in the Civil Procedure
Code. The rates specified are minimal.
Executing officer's fees If a writ of execution is issued, the judgment creditor will have to
pay the Executing Officer’s fees relating to the seizure of property or assets.
These fees will be between 1%-5% of the property or assets seized, and will be
higher if an auction of property is required.
Where the Complaint is withdrawn or
dismissed without preventing the Plaintiff from issuing fresh proceedings, or
where the case is discontinued by agreement or compromise, the court may in its
discretion refund to the party concerned the whole or part of the court fee
paid, at the time of issuing the proceedings.
Civil judgments made by foreign
courts Thailand has not entered into any
treaties with any foreign countries for the reciprocal enforcement of civil
judgments and therefore no foreign judgment may be directly enforced in
Thailand. If a judgment has been given in a court outside Thailand, and it is
desired to enforce it in Thailand (for example, because the Defendant has
assets in Thailand) then it will be necessary for the foreign judgment creditor
to issue fresh proceedings in the Civil Court in Thailand. The previous
judgment will be admissible in evidence, but the Thai Court is entitled to give
judgment based on the merits of the case. If judgment is finally given against
the judgment creditor, then enforcement action can be taken, as discussed
above.
The position is different in the
case of foreign arbitration awards, which may generally be enforced in Thailand
(see the following Chapter on Arbitration).
Revised 1 December 2006