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 July 10 issue of The Phuket News), while the second installment focused on the immediate procedural steps and which pitfalls to avoid (see July 24 issue). Here, in our third and final installment, we look at the process and factors considered for appeals and in awarding damages.
DAMAGES
As a general rule, civil courts in Thailand limit recovery for contractual breaches and wrongful conduct to actual monetary damage caused. The aim is to put the harmed party in the same financial position they would have been in had the wrongful act not occurred.
There is no provision for the recovery of “general” or “additional” damages in Thailand, such as emotional distress or punitive damages. However, there is a recent exception with regard to the latter case under the 2009 Product Liability Act, which does permit the court to award limited punitive damages based on and in addition to the actual damages.
Contractual parties may provide for a exception to this general rule of “actual damages only” by including a liquidated damages provision in their contract. But it should be noted that Thai courts have discretion to reduce such liquidated damages if they believe such liquidated damages are too high compared with the actual damages caused.
Courts may also refuse to enforce such a provision if they believe that it is contrary to public policy and/or contravenes any other relevant applicable laws such as the Unfair Contract Terms Act.
Because Thailand is a “free contract” jurisdiction – where parties can agree to any lawful contractual terms – they may also limit their respective liabilities.
However, such limitations of liability will almost certainly receive a greater degree of scrutiny by the courts as to their enforceability. For example, contractual terms pre-exonerating a party from fraud or gross negligence are highly unlikely to be enforceable under the Unfair Contract Terms Act.
APPEALS
In most instances of a civil court case in Thailand either party may appeal the judgement of a trial court. And, in most cases, appeal to intermediate courts of appeal is available with a final option to appeal to the relevant Supreme Court.
However, in some cases the law provides for appeal directly to the relevant Supreme Court, thus bypassing any intermediate appellate court. Notable examples of this would be cases involving: (1) the recognition and enforcement of arbitration agreements and awards; and (2) employment law disputes.
Although the law allows for oral arguments before courts of appeal, in practice this is rarely done. Thus, appeals are submitted in writing and, as a general rule, may be based on any issue of law or (unlike in many other jurisdictions) fact.
However, there are exceptions. For example: options for appeal may be limited by the financial amount in controversy; or the grounds on which one may appeal may be limited to points of law only, depending on the court which has jurisdiction over the case.
In any event, the intermediate courts of appeal, and the various supreme courts, in Thailand do not “retry” cases – no new evidence may be introduced in any stage of appeal.
JUDGEMENTS
Judgements in Thailand are read from the bench. As a general rule, any appeal of such judgements must be made within 30 days. But the 30-day deadline may be extended on a showing of any acceptable good cause.
However, it is important to note that, the 30 days do not begin to run until the parties have received notice, in fact or in law, of the judgement.
If the losing party attends the reading of judgement from the bench, they will be considered notified. Though, if the losing party does not attend the reading, notice will only be effected once the losing party legally receives the written judgement.
Regardless, the written judgement is not issued until well after the reading of the judgement from the bench. As a result, it is common practice for a losing party to choose not to appear for the reading of the judgement and await legally effective notice of such to follow later by way of service of the written judgement.
– 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