Litigation: how to interrupt the “adjournment game”

How does a preliminary court hearing take place in an arbitration court?

The preliminary court hearing within the framework of the consideration of the dispute in the Arbitration Court is a separate court hearing. Every case in any court begins with such a hearing.

During the preliminary hearing, the court examines the circumstances of the case, asks questions to the participants in the case, explains non-obvious, but nevertheless important, shortcomings of the applicant’s or plaintiff’s claims, and shortcomings in the actions of the parties.

The preliminary hearing is one of the most important stages of legal proceedings, since it is during such a hearing that the court actually becomes familiar with the participants and circumstances.

Stages of the preliminary meeting:

• the court sets out the circumstances of the case: parties, requirements
• ascertaining the appearance of the parties and their representatives
• clarification of the availability of applications
• statement of the Plaintiff's claims
• statement of the Defendant's objections

Important:

1. The preliminary hearing should be used for filing motions.
2. The preliminary court hearing can flow into the main and final hearings within 1 hearing
3. After the entry of new persons into the case, the change of judge, the trial of the case begins from the beginning, which means that a second preliminary hearing will be held

Sediments in the epidemic

The wave of deposits in the spring of 2021 was caused by the pandemic. From March 19 until mid-May of this year, Russian courts considered only urgent disputes. As for other trials, the courts themselves decided whether they should be heard during the “forced quarantine.”

It’s great that sometimes courts approach tax disputes in a non-formal manner!

Read more…

The Presidium of the Supreme Court in its thematic review indicated that issues of postponing cases and suspending proceedings on them should be resolved individually, taking into account the specific circumstances of the disputes. If the situation allows, then a variety of processes can be carried out.

However, some courts have officially announced that all hearings, except urgent ones, will be postponed until after April 30. The Supreme Court of the Republic of Tatarstan acted in a similar manner. However, if the parties asked to consider the dispute in their absence, the courts did so.

The Arbitration Court of the Central District and the 8th AAS worked in a similar mode. Some courts acted differently, the expert says. If the Arbitration Court of the Volga District and the 14th AAS did not submit requests for adjournment, then they carried out these processes. Some arbitration appeals have even rejected requests to postpone hearings, citing the pandemic. This is what the 6th AAS, 19th AAS and 20th AAS did.

In practice, the individual approach of the courts to each case on the issue of adjournment during the pandemic has really emerged. In dispute No. A45-38296/2019, a third party, LLC, tried to postpone the proceedings. The applicant referred to the need to familiarize himself with the case materials, because this was impossible during the period of “non-working days”, as well as due to other restrictions. But the Arbitration Court of the Novosibirsk Region refused to postpone the meeting.

The court recalled that the company was involved in the process at the end of January, and on February 26, a meeting was held on the case, in which the company participated. The court decided that the company had more than a month to submit all the necessary documents and familiarize itself with the case materials (from the moment of the February meeting until the start of the “non-working” days). Moreover, the applicant was unable to prove that the measures taken in the region to combat coronavirus prevented him from exercising his procedural rights. Therefore, the judge rejected the request and considered the dispute on its merits.

The courts also did not want to rush. In case No. A17-990/2020, the court refused to satisfy a third party’s application to speed up the consideration. “The period of adjournment is not excessive and is determined based on objective circumstances,” the court indicated and referred, among other things, to the clarifications of the RF Armed Forces.

Supreme Court: an oral contract is not a reason for non-payment

Read more…

And in proceedings No. A50-1147/2020, the Court of Justice of the Perm Territory, in response to a similar statement, indicated: “The court has no grounds for expediting the consideration of the case by setting a different date for the court hearing, taking into account the current situation in the Russian Federation and the Perm Territory related to the restriction of personal reception citizens in courts, recommendations for consideration of cases and materials of an urgent nature listed in the relevant clarifications of the highest court.”

According to statistics, the courts complied with the instructions and postponed non-urgent hearings under the conditions of “forced quarantine.” From March 23 to March 27, arbitration courts of all levels and constituent entities issued 111,000 rulings to postpone court hearings. For comparison, during the same period in March 2021 (from March 25 to March 31), there were almost four times fewer such definitions - 31,800.

The procedure for holding the main court hearing in the arbitration court

During the main court hearing, the court considers the case on its merits, taking into account all the evidence provided, petitions, explanations and testimony of persons participating in the case. At this stage, the trial is much more difficult to postpone.

It is during the main hearing that you will have to prove your position in court, interrogate your opponents in court as effectively as possible, and present the presented evidence in a way that will allow the court to make a decision in your favor. You should be prepared that, within the framework of the main legislation, the most important circumstances for the case are clarified; your procedural opponents will be the most active in this meeting.

The stages of the main court hearing are as follows:

• information is provided about the case currently being considered, the parties, the requirements
• the identity of the participants in the case and their representatives is established
• participants are informed about the results of petitions for the court to obtain information and documents, and other petitions of participants in the case
• the parties submit petitions, additions
• witnesses are questioned and additional evidence is presented
• the court may raise the question of ending the consideration of the case on the merits and moving on to debate, and making a decision

USEFUL : read how to behave in court using the link and watch the video

How to postpone a meeting

As a general rule, after accepting a counterclaim, the case is reviewed from the very beginning.
It must be remembered that in order for such “acceptance” to take place, the counterclaim must comply with all requirements established by law (the counterclaim is aimed at offsetting the original claim, the satisfaction of the counterclaim excludes in whole or in part the satisfaction of the original claim, there is a gap between the counterclaim and the initial claim mutual communication and their joint consideration will lead to faster and more correct consideration of disputes). Please note: the defendant may file, for example, a counterclaim regarding the invalidity of the contract or recognition of the contract as not concluded. Objectively, it may be completely unfounded and have no prospect of resolution (theoretically, it could be abandoned altogether), the main thing is that it formally meets the specified requirements.

https://www.youtube.com/watch?v=ytcreatorsru

In this case, of course, it is necessary to find this third party. Here, too, it does not matter how justified the third party’s demands are; the main thing is that with his entry, the case is considered from the very beginning. In extreme cases, namely if the court refuses to allow a third party to join the case, this determination can be appealed without waiting for the final decision of the court. And, by the way, due to the need to appeal, you can also file a motion to postpone the hearing of the case.

They are provided for in Art. 158 of the Arbitration Procedure Code of the Russian Federation, and these include the following circumstances:

1. The participant in the process did not appear in court, and there is no evidence that he was properly notified of the place and time of the hearing.
2. The parties to the proceeding jointly request the postponement of the proceedings to independently resolve the dispute, including with the assistance of a court or mediator.
3. A party to the proceedings requests a postponement of the proceedings because she or her representative cannot appear in court for a valid reason.
4. A party or parties to the proceeding request an adjournment of the proceedings due to the need to present additional evidence.
5. The case cannot be considered due to the failure of any of its participants or other persons (witness, expert, translator, etc.) to appear in court.
6. Technical problems have arisen that are preventing the case from being processed.

Any of the grounds does not apply unconditionally. The final decision to postpone the proceedings rests with the court. He issues an appropriate ruling, which, among other things, indicates the period for which the proceedings are postponed. This period cannot exceed one month. If the parties request to postpone the proceedings due to the intention to independently resolve the dispute, such period cannot exceed 60 days.

If the initiative comes from one of the parties, it is necessary to prepare a motion to postpone the proceedings. The request can be made orally - it will be recorded in the minutes. But in most cases, the petition is prepared in writing - this is a universal option that is suitable for most reasons. Its advantage is that you do not have to appear in court in person.

We invite you to read: Why people don’t take vacations and what this will lead to

The petition is prepared in free form, but a number of rules must be followed:

1. The addressee of the petition is the court that is considering the case.
2. In the header of the petition, it is advisable to indicate the details of the participants in the process and the number of the arbitration case - as is done in all procedural documents sent to the court.
3. In the text of the petition, it is extremely important to convincingly state the reason for postponing the proceedings and justify it - to provide evidence of the existence of such a reason. The courts analyze this point very carefully. The reason must be valid, and together with the basis for postponing the hearing, it must look so that the court has no doubt about the need to grant the petition.
4. Justification for the application – annexes thereto. Without this, it is almost impossible to convince the court.

Video conferencing in the arbitration court

Videoconferencing (VCC) is a method of conducting a court hearing through the use of video communication.

This opportunity to hold a meeting is used to allow a person who lives far from the venue of the hearing or does not have the opportunity to directly participate in the court to participate in the court hearing.

The HQS is organized on the basis of a petition from a person participating in the case. Such a petition must be submitted in advance, since the HQC in an arbitration court or a court of general jurisdiction is organized exclusively with another arbitration court, regardless of their jurisdiction.

Other features:

• Videoconferencing is carried out only if there is appropriate technical capability
• When using video communication, a video recording of the court hearing is carried out
• The use of videoconferencing in closed production is prohibited

Motion to adjourn trial

IN ________________________________________

(name of court)

________________________________________

Plaintiff: ________________________________________

(Full name or name of organization)

________________________________________

(plaintiff’s postal address, telephone, email)

Respondent: ________________________________________

(Full name or name of organization)

________________________________________

(address of the defendant, telephone, email)

Third party: ________________________________________

(Full name or name of organization)

________________________________________

(address, phone, email)

Petition

about postponing the court hearing

Civil case No.______ is pending in the proceedings of _________________________________ (name of the court) on the claim of ______________________________________________________ (full name or name of the plaintiff) to _____________________ (full name or name of the defendant) about __________________ (subject of the dispute).

The court hearing in the case is scheduled for “___”_________ ____ at ____ hour.

I have been notified of the time and place of the court hearing, but I am not able to appear in court to participate in the court hearing for the following reasons _________ (indicate valid reasons for the impossibility of participating in the court hearing).

I will be able to participate in the court hearing after “___”_________ ____, when _________ (indicate when the applicant will be able to participate in the court hearing, for what reasons this period is necessary).

Based on the above, guided by Article 167 of the Civil Procedure Code of the Russian Federation,

ASK:

1. Postpone the court hearing in case No. _______ on the claim of _______ (full name of the plaintiff) to ____________ (full name of the defendant) about ___________ (essence of the stated claims) for a period until “___”_________ ____.

2. Do not consider the specified case without my presence, since this may significantly violate my interests as a party to this case.

3. Notify me of the time and place of the next court hearing _________ (indicate a new address if the applicant is not at his home address; telephone number to which notice can be sent; email address).

List of attached documents (all documents are attached with copies according to the number of persons participating in the case):

1. Copy of the request to postpone the court hearing

2. Documents confirming valid reasons for failure to appear at a court hearing

“___”_________ ____ (signature) __________

Closed court hearing in arbitration

A closed court hearing is held if the subject of the case is information and information protected by special legislation of the Russian Federation.

Examples of closed trials:

• State secret
• Banking secrecy
• Notarial secret
• Attorney-client privilege

Peculiarities of consideration of cases in closed proceedings:

• Only persons directly related to the case participate in the case; the participation of witnesses and third parties is significantly limited
• All participants in the court are warned of responsibility for disclosing information that became known to them during the consideration of the case by the court.
• Keeping audio and video records is prohibited
• Persons participating in a closed meeting may only take written notes
• The court decision is made only in written form.

How to postpone a court hearing in an arbitration court?

The possibility of postponing a hearing in an arbitration court depends on the specific category of cases and the circumstances of the court hearing. For example, arbitration cases that last a long time, based on the procedures provided for by law, can be postponed quite simply.

However, in the event of repeated failure to comply with court requirements, a party to the case may be deprived of the opportunity to present evidence, make necessary motions, raise objections, etc. Thus, you should highlight the most important court hearings for you.

If the court is considering categories of cases that are not long-term, postponing the court hearing becomes a complex procedure.

Contents of the motion to postpone the trial:

• Name of the court, parties, case number in the arbitration court
• Statement of the circumstances of the case in court
• State the grounds for postponing the trial (inability to provide the requested document, inability to appear in court, etc.)
• Refer to legal norms that give you the right to ask the court to postpone the hearing
• In the pleading part of the petition, indicate the request to postpone the meeting
• Attach documents confirming the circumstances you have stated to your application.
• Signature and date

Cases in which a meeting is postponed

How to postpone a court hearing in arbitration proceedings? Let's look at cases where this is possible.

Request to postpone the hearing

The simplest option to postpone consideration of a case in an arbitration court is to use the right granted to the parties to file a corresponding petition to postpone the court hearing. The grounds for submitting such a petition to arbitration may be very different.

So, for example, the basis for adjournment may be the impossibility of presenting certain evidence at a court hearing due to the fact that it is in the possession of a person who is absent at the time of the arbitration meeting, or the need to request evidence from a person not participating in the arbitration process (Part 3 Article 158 of the Arbitration Procedure Code of the Russian Federation). The applicant must himself send this person a request to provide the requested evidence.

In the header the statements list:

• Name and address of the court.
• The document is addressed to the arbitration court, which is considering the case.
• Name and address of the plaintiff.
• Name and address of the defendant.
• The number of the case for which the disputant is requesting a postponement.

The main part contains the heading: “Motion to postpone the trial,” “Motion to postpone the trial,” etc. This section of the document indicates the reason why the applicant is asking to postpone the hearing. Also in this part of the text there is reference to a rule of law that allows transfer.

If attachments are attached to the application, then a list of them is listed in the application. In the final part of the application, the date for filing the document is indicated. There must also be a signature of the person acting on behalf of the applicant and its transcript.

Due to illness

How to delay the arbitration process due to illness? Postponement of a court hearing of the arbitration court due to illness (Part 4 of Article 158 of the Arbitration Procedure Code of the Russian Federation) of a representative is possible, but is not reliable. Practice has shown that even if a sick leave certificate is submitted to the case before the meeting, the arbitration may not postpone the consideration of the dispute. True, there is arbitration practice of canceling first-instance arbitration decisions made without the participation of a representative of one of the parties who was absent due to illness.

Counterclaim

If the defendant makes a counterclaim, then the likelihood of the arbitration court postponing the consideration of the case is high. But not in all cases, a counterclaim is subject to acceptance and consideration by arbitration simultaneously with the original claim. Therefore, a lawsuit is not a 100% option to postpone the case. If the arbitration court refused to accept the counterclaim, then it is possible to create a situation in which the arbitration court cannot consider the case due to its transfer to the arbitration court of another instance (appeal or cassation) to consider the complaint about the refusal to accept the counterclaim.

Need to postpone a court hearing?

Take advantage of free assistance from an experienced lawyer using the link below.
Consultation is possible online or in our Moscow office. ASK AN EXPERT

Court hearing of the appellate instance under the Arbitration Procedure Code of the Russian Federation

Before the decision of the court of first instance comes into force, you have the right to file an appeal against the decision of the regional arbitration court.

Features of the appellate court:

• The appellate court considers the case based on the evidence presented to the court of first instance
• New evidence can be added to the case only if it is impossible to present it to the first court
• Violations of substantive and procedural law, taken together, are grounds for canceling the decision of the regional arbitration court
• The appellate instance may issue a new act on your case, cancel or uphold the decision of the first instance court, or send your case to the first court for a new trial.
• The decision of the arbitration court of the second instance comes into force immediately

Despite a number of significant differences, the parties to the case also have the right to exercise basic procedural rights: ask questions, give explanations, objections, participate in debates, etc.

MORE DETAILS : about appealing the decision of the arbitration court at the link

Help from an arbitration lawyer in Yekaterinburg

The law office “Katsailidi and Partners” has extensive experience in participating in arbitration cases of various categories. Taking this into account, we were able to form a significant base of positive judicial practice and methods for protecting the interests of our Clients in arbitration courts.

By contacting our Bureau, you will receive qualified legal assistance in the form of:

1. Professional legal advice on your problem
2. Drawing up statements of claim, responses, objections and petitions for various categories of arbitration cases
3. Assistance in pre-trial dispute resolution
4. Representation of your interests in court
5. Assistance in initiating enforcement proceedings in your favor