The first part of our series on civil litigation in Thailand covered the basic legal framework in which lawsuits in the Kingdom are carried out. (See story here)
Here, we begin the second installment of our three-part series by focusing on the immediate procedural steps and which pitfalls to avoid.
First, a defendant in Thai court must present a reply to the complaint within a statutorily prescribed time. If the defendant fails to do this, the court may refuse to allow admission of his defense if the result will be and unfounded delay of the proceedings.
However, in our experience, courts will often allow extensions of time for almost any tenable reason – and sometimes without any reason.
This common practice can be justifiably frustrating to a good faith plaintiff’s desire for just and efficient resolution of the dispute. But it should said that over the past decade we have noted improvement with regard to such procedural irregularities and we are confident such will continue to improve as Thailand continues on its course towards a fully developed rule of law jurisdiction.
By common-law jurisdiction standards, but not unlike most civil law countries, Thai law provides for very little pretrial discovery; the one exception being a request for admissions of fact.
Each party must generally prepare and produce its own evidence and the other party must then refute the other party’s evidence on its merits, with their own evidence, or both.
A party may request that the court subpoena evidence from the other party. However, such a subpoena must identify the specific document sought and specific relevant purpose for which it is sought. Further, the requesting party must show good cause for the court to grant such a motion. As a practical matter, such requests are not often made and even less often actually granted.
After both parties have made their first filings in a civil court case in Thailand, the court sets a date for a pretrial conference. However, the Thai Civil and Procedure Code allows the presiding court to order a settlement conference at any time during the case.
As a matter of practice (and perhaps Thai culture) a settlement conference is almost always ordered prior to the pretrial conference. This is the case, even if the parties make it very clear that they have already done all they could to settle and failed or that they are unwilling to settle. This practice often results in what many foreign parties consider an unfortunate expenditure of resources and an unnecessary delay in the proceedings.
Assuming the settlement conference does not succeed in terminating the case, the parties then proceed to a pretrial conference during which they specify to the court which issues they believe need to be resolved – thus, this pretrial conference is often referred to as the “settlement of issues”. The court then sets the date or dates for the taking of evidence on these issues. In other words, the trial date.
Unfortunately, a Thai civil court trial usually consists of several evidence and/or witness hearings. Each party presents its evidence consecutively; however, the hearing of the parties’ evidence may often be separated by several days, weeks or even months depending on the case and the court’s schedule.
It is important to note – particularly for those most familiar with court case proceedings under a common-law tradition – trials in Thailand, unlike most civil law countries, are a matter of the evidence being presented to the judge and not the parties “making a case” – particularly with regard to points of law.
In fact, during the actual trial, the lawyers may have very little to say. Depending on the judge, the parties’ lawyers may be limited to questioning various witnesses and speaking to the court with regard to procedural matters. Quite often it is the judge or judges who conduct the questioning of the witnesses.
After the hearing of evidence is concluded the parties may, if permitted by the court, submit closing statements.
The court then also fixes a date to pronounce its judgement. This day can vary depending on the procedural law under which the case is brought and how busy particular court is but it’s usually within 30 to 90 days after the conclusion of the trial.
Keep an eye out for our third and final installment on civil litigation in Thailand, where we look at damages awarded and appeals.
– Weeraya Kippen, Associate Partner at the Phuket office
of international law firm Duensing Kippen.
Duensing Kippen is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit duensingkippen.com