Step by Step Civil Litigation in Phuket, Thailand
This article is going to give you a wide picture of steps in Civil Litigation (means civil and commercial litigations) in Phuket, Thailand. Both in the interest of enforcing and defending a legal right. It is not only useful for litigation by the Court of Justice. But also useful for the litigation by the Thai Arbitration Institute. That even few differences points eg. fees, rights of appeal, language usage (you can use English or another language in an arbitration trial). etc. Let’s go, step by step!
Step 1: Understand Your Case
This step is the most important step in all types of Litigation. Also, civil litigation. The best way to understand your case is to make a timeline sheet and list of evidence. What happened? Who does what, when, where and how. On top of that, Which piece of evidence supports those facts?
This not only gives you a clear picture of your case in both questions of fact and question of law. But also guides you for direction, strategy to perform your case. On top of that, it helps your lawyer to have a perfect understanding about your case and gives you accurate legal advice. Also, factors and possible risks, if any. The best results finally.
Step 2: Compromise
The compromise is always the best of legal dispute solutions. Keep this fact in mind, there are so many factors impact the Court Judgement which you can’t control during civil litigation. For example, another side and their lawyer, witness and judge. Most importantly, the Court Judgment may not meet your expectations, but you can decide the results yourself by compromise. Compromise also save energy, money and times etc.
Step 3: Choose the Civil Litigation at the Last Option
When your effort for compromise became not possible. The last option is litigation. Timeline sheet and list of evidence you have made at the first step. Together with, basic understanding about steps in civil litigations would be very useful to you.
Step 4: Understanding the Steps in Civil litigations
4.1 Thai Legal System
Thailand uses a Civil Law System or codified law, it isn’t a Common Law System or judge made law. It means when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed. So, your opinion about what the law should or should not be doesn’t help your civil case.
4.2 Prescription or limitation
In civil and commercial cases the prescriptions are between 3 months to 10 years. This will impact your determination. Sometimes, you have no time for compromise. Section 193/9 of Civil and Commercial Code stipulates that a claim is barred by prescription if it has not been enforced within the period of time fixed by law. So, If you prepare for civil litigation, this should be the first question. with your lawyer.
4.3 Burden of Proof and Standard of Proof
It is one of the most important steps of all litigations. Again, also the civil litigation. Your lawyer should give you a very clear explanation about these. This guides you to accurate witness and evidence to support your case. How burden of Proof and standard of Proof impact your case, see one example with this in the article Construction Defect Claims. Prepare right piece of evidence to support your case means more chance to win the case.
“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” (English For Lawyer: Dr. Suthathip Joonlamon: Thai Judge Examination 15 June B.E. 2556)
4.4 Rights of Appeal
There are 3 levels of Thai Court of Justice. Court of first instance, Court of appeal and Supreme court (final court of appeal). Basically, after the judgement of the lower Court the party has a right to appeal to the higher court within 1 month from the date of judgement (extendable by the court order). The party has a right to appeal both questions of law and questions of fact.
Some civil and commercial litigation may be a limitation of appeal. For example; the amount in dispute doesn’t exceed THB 50,000, 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.
However, to appeal to the Supreme court must have the supreme court approval after reviewing the motion to appeal Section 247 of CPC.
Important note; theoretically, the High Courts both the Court of Appeal and Supreme Court may have an order for hearing but never seen in practice. Therefore, all evidence should be perfect when hearing at the Court of first instance hearing.
4.5 Costs of Civil Litigation and Time Frame
Firstly, Court fees, the case in which the claims amount does not exceed 300,000THB, court fee is 2% of the claim amount, THB1,000 in maximum. The case in which the claims amount exceeds THB300,000, court fee is 2% of the claim amount, 200,000THB in maximum, plus 0.1% of the claim excess of THB50,000,000. On top of the court fee, there will be lawyer fee and relevant expenses such as translation and translator fee when hearing, if any.
Each court trial may take between 6 months to 1 year depending on many factors.
Step 5: Execution Procedure
Where a judgment or order of a Court has not been complied with in whole or in part. Within 10 years from the date of pronouncement of the judgment or order, the party in whose favour the judgment or order is entitled to apply for execution, Section 271 of CPD.
In conclusion, understanding about the steps in Civil and Commercial litigation saves costs and time. If you need help from a lawyer or a law firm in Phuket to assist you in a Civil or Commercial Litigation both in the interest of enforcing and defending a legal right. lower and higher Court. You can contact us.
Article by Akenarin Thongplod, Thai Barrister at Law