Litigation Gude: Applicable to civil commercial and criminal cases.
This article is a pre-litigation guide, it is not only useful for Phuket court trials but also useful for a trial of all Courts in Thailand. Whether the enforcement side or defending side. It provides basic information through 5 simple steps which the disputing parties should have well understood before a lawsuit is filed.
This guide is also applicable to all civil, commercial, and criminal cases. And also an arbitration trial. Even though there are a number of differences between those trials, it does not make a real effect on the outcome. That is because the fundamental principles of those trials are mostly the same “Give unambiguous proof without a doubt to everyone”.
In addition, this pre-litigation guide gives you a basic understanding of trials and things you have to deal with when litigation.
Step 1 Make a perfect timeline for litigation
A perfect timeline sheet is always helpful to your lawyer to have a clear understanding of facts and evidence, and also an appropriate strategy with an action plan for the whole procedure of the case.
A perfect timeline means ‘all facts and supporting evidence are identified and located’ such as what happened? Who does what, when, where, and how. Importantly, how many pieces of evidence you can really provide to the court? During the pre-litigation, you may realize that there is some information and evidence missing and ambiguous!
Particularly, for every lawyer, understanding the case exceeded all other proceedings in importance. Keep this fact in mind, the timeline easily gives your lawyer a bullet point of the case both questions of fact and questions of law. It makes your lawyer confident to give the clients a piece of accurate advice including major factors and possible risks, and finally the best result.
So, prepare a timeline sheet before meeting with a lawyer, and improve the timeline from time to time. Always keep trying to make it better once and keep your lawyer on the same page.
Step 2 Understand facts and opinions
Everyone is entitled to their opinion but the Court trial is very strict by the rules of “burden of proof and the standard of proof”. Keep this fact in mind, only facts and evidence will be taken into account when a judge delivers a judgment. Judges are not binding to take any opinion into account for a verdict. That is according to the burden of proof and the Standard of proof.
Thailand uses the civil law system or codified law, not the common law or judge-made law. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed.
The court trials need a matter of facts and evidence support, an accurate argument with accurate evidence. The judgment will be delivered by the existing law, facts and evidence.
Don’t waste too much time making an opinion when pre-litigation and hearing. Your opinion about the case isn’t helpful at the hearing stage. You have to focus on the burden of proof and the standard of proof and evidence support.
Opinions about the case may be worth when the situations become;
2.1-Ambiguous pieces of evidence
Sometimes, after a case examination by a lawyer, the case becomes ambiguous and the outcome can be in favor of both parties. In this case, your opinions will be worth it and could affect the outcome. Good opinions and sharp points of view always convince the judge to deliver the judgment in such side’s favor. It doesn’t need to be extremely sharp, but needs to be better than another side.
On one hand, when the statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed or of the spirit of provisions. On the other hand, when the statute is unclear the judge is always looking for a good reason which probably forms a fair judgment under his signature.
2.3-Express opinion through a closing statement
When the hearing has finished, the disputing parties have the right to file the closing statement to express their opinion in both matters of fact and matters of law. That is to explain and convince the judge why he or she should deliver the judgment in your favor. The closing statement will be attached to the file and the higher court will always see it. You have a right to file the closing statement at all levels of Thailand court.
Step 3 Understand the litigation procedure
All cases have the prescription which has a limited period of time to take some legal actions before expiration. It means you have to take some legal requirement actions within the deadline. The prescriptions for civil and commercial cases are between 3 months to 10 years. Mostly 1 to 10 years. The criminal case, 3 months prescription for compoundable offenses and a maximum of 20 years for non-compoundable cases, etc. (1)
At the first statement of Civil and Commercial trials, the defendant may present the court with clear proof of prescription matters but in practice, the case will be dismissed on the judgment date. But this does not apply to criminal trials where the court can immediately dismiss the case when clearly seeing the expiration of a prescription without the accused’s presentation.
There are a lot more deadlines for court trials that will be handled by your lawyer such as when to file the list of evidence or written testimony for instance.
3.2 Burden of Proof and Standard of Proof
This is the golden key for every legal trial. Particularly, the trial by court and Arbitration, the case proceeds from the hearing date till the verdict date will be very strict on this golden key. You should question your lawyer and make this point clear in advance.
The burden of proof guides you to choose accurate witnesses and evidence and strategy of presentation and argumentation which is definitely needed to be prepared accurately. The standard of proof guides you to the quality and quantity of witnesses and evidence.
“In civil cases, the standard of proof is met if the party with the burden of proof can adduce evidence to support that his claim is more probable than not, or there is greater than 50 percent chance that the claim is true” (2)
“in a criminal case, when court hearing, the prosecutor must prove without reasonable doubt that the accused committed the charge”.(3) Read more about criminal prosecution
Importantly, the sounds of third parties and documents are always louder than the sounds of the disputing parties.
3.3 Rights of appeal
In Thailand, there are 3 levels of Court of justice. First, the court of first instance like Phuket court and other provincial and Municipal courts (Sarn Kwaeng) court around Thailand. Second, the Court of Appeal and final Court, the Supreme Court.
Generally, after the first judgment you have the right to appeal to a higher court both questions of law and questions of fact, mostly within 30 days (days 15 for labor cases) from the judgment date which is extendable by the court order.
Check this out with your lawyer, there will be some exceptions! For example, in civil and commercial cases; when the amount when a dispute doesn’t exceed THB50,000, no appeal shall lie on questions of fact, unless a judge of the Court of first instance gave a dissenting opinion or has certified that there are reasonable grounds for appeal, etc. Also, to appeal to the Supreme Court, you must have the supreme court’s approval after reviewing the motion to appeal. (4)
Important note; theoretically, the High Courts both the Court of Appeal and Supreme Court may issue an order for extra hearing during the trials but it is never seen in reality practice. Therefore, the best evidence should be super perfect and filed at the first court of instance!
For Arbitration, generally, the arbitral decision is final, except for some serious reasons such as a dishonest trial, or wrong procedure. (5)
3.4 Awards enforcement
If any, an example of civil and commercial cases, where a judgment has not been complied with in whole or in part by the losing party. Within 10 years from the judgment, the winning party is entitled to enforcement.(6) The enforcement of the award of the arbitral will proceed under the same rules through the court procedure. Read more about the enforcement of the awards
Step 4 Know litigation costs and time frame
In Thailand, criminal trials do not have a court fee while other court trials always come with fees. For example, in civil and commercial cases in which the claim amount does not exceed THB 300,000, the court fee is 2% of the claim amount.
When foreigners become dispute parties, there will be a translation fee involved.
Fees of the Thai Arbitration process are more expensive than the court fee but you pay for more quality services about document support.
4.2 Time frame
There are so many factors that affect the whole time frame of litigation. The time frame in which you should take into account when pre-litigation may be classified by pre-trial, mediation for settlement, first court trial, higher court trial, and enforcement proceeding, if any.
Good news, since the 1997 Thai Constitution B.E. 2540 became effective, the Thai Court has been trying to apply the principle of “Slow trial, not Justice” to the case. Now, the trial of each Court level, whether in Phuket court or not, goes faster than I have ever seen, each trial may take about 6 months to 1 year. Phuket courts are well-organized about this. Playing the delay game in the Phuket court trial does not work anymore.
Step 5 Strategy for settlement
Of course, when it is time to fight, you fight to win. However, winning without fighting is best. Whether when pre-litigation or after a lawsuit is filed, no matter which side you are on. Be open to a settlement to resolve your dispute, even if your lawyer feels very confident of the outcome. The settlement is always the best resolution to all legal disputes. It not only saves your energy and costs but also gives you acceptable results. The good news, Phuket Courts are very well-organized about the mediation process.
Keep this fact in mind, there are a number of factors beyond your control. Some major factors badly impact on the outcome. For example, the other side, witness, etc. Even if your own side and the duty judge. Most importantly, the judgment may not be in your favor. You can not decide whatever you want but you can decide whatever you can accept! So, when pre-litigation, let’s prepare for settlement strategy at the same time
Additionally, in some criminal cases, settlement is possible and the case can be closed without punishment or serious punishment.
All the trails are needed to be well-organized for the best results and everyone can do it. A good pre-litigation saves time, money, and energy. Be well-organized and good luck with your lawsuit.
If you are in need of pre-litigation in Phuket court or other courts in Thailand, or for more information about litigation in Phuket court or litigation law, you may visit our litigation page or just feel free to contact us, our litigation lawyers handle the cases in Phuket court and the whole Thailand.
Tags: Pre-litigation, Phuket Court
(1) the Thailand Civil and Commercial Code, Section 193/9 to 193/35, the Thailand Criminal Code, Section 95 to 101
(2) Dr. Suthathip Joonlamon: Thai Judge Examination 15 June B.E. 2556
(3) the Thailand Criminal Procedure Code, Section 227, Supreme Court Judgment no. 7404/2560
(4) the Thailand Civil and Commercial Procedure Code, Section 247
(5) the Thailand Arbitration Act B.E. 2545, Section 40, the Thailand Civil and Commercial Procedure Code, Section 222
(6) the Thailand Civil and Commercial Procedure Code, Section 271