Civil Case Preparation
After a petitioner retains a lawyer in Thailand, the following need to be done before filing of the case can be done in court:
Signing of the Power of Attorney
The Power of Attorney gives the lawyer the authority to represent his client in court. Even if the petitioner is willing to go to court every stage of the way, he will still need to comply with this requirement.
Even so when the petitioner is a foreigner or an absentee during some stages of the proceedings, the Power of Attorney will give his lawyer the personality to appear in court on his client’s behalf.
The foreign plaintiff must have the Power of Attorney notarized and authenticated by the Thai Embassy or Consulate in his home jurisdiction.
Preparation of the Pleadings
The start of any good case begins with a well-drafted pleading.
A pleading is a formal statement filed by parties in an action for legal proceeding. The main contentions and allegations of the filing party are made known to the courts through pleadings.
A good pleading must be able to state all facts and allegations relevant to the case being filed. There must also be proper citation of the laws applicable to one’s case.
Payment of Court Fees
If the case concerns property or money, the filing party is required to pay court fees equivalent to 2% of the total claims (with a maximum of 200,000 Thai baht) for claims under THB 50 million, and an additional 0.1% of the claims if it exceeds THB 50 million. The payment must be made upon the filing of the case.
There is also a 1,000 Thai baht charge for court delivery expenses.
The court fees are paid to cover the expenses to be incurred by the court. Should the case be settled at compromise, expect the court fees to be returned with very minimal deductions. The opposite can be said if multiple hearings are required before a case is terminated.
Summary of Documents to be Submitted
Below is a general outline of documents which must be ready when filing a civil case in court:
- Documents evidencing the source of the obligation, i.e. contract, formal demand letter, etc.;
- Complete listing of the amounts and interests due;
- Power of attorney, in case a proxy is appointed by the principal to act in his behalf;
- Power of attorney for the Thai lawyer;
- Signed photocopy of theThai national ID or passport of the plaintiff;
- Company registration certificate of the plaintiff-juristic person;
- Tabien Baan or Household Registration certificate of the defendant;
- Other documents relevant to the case, i.e. title deeds for land cases, birth certificate of the child for legitimation, etc.
Service of Summons
After the court dockets the case, a summons is sent to the Respondent, informing him that a case had been filed against him. A copy of the complaint is sent along with the summons.
An Answer is a pleading filed by the Respondent admitting or denying allegations made by the Petitioner in his complaint. Depending on how the summons is served on him, the Respondent is given a certain number of days to file his Answer in court.
If a Respondent fails to file an Answer, the Plaintiff may move to have him declared in default. A party who is held in default loses certain rights which he should have enjoyed should he have filed his Answer on time.
Default of Answer and Appearance
Either party may be declared in default by motion of the other.
A defendant who is declared in default loses all chance to defend oneself during the course of the proceedings, and the case shall be heard and tried based on the merits of the plaintiff’s case alone.
If the plaintiff fails to file for a default order within 15 days from the defendant’s failure to file Answer, the court will strike the case from its docket.
On the other hand, if both parties are in default of appearance, the case will be stricken from the court docket without prejudice to its reinstitution within a given period.
A defendant who chooses to file an Answer may, at the same time, file for Counterclaims against the Plaintiff. A counterclaim is any claim which the defendant may have against an opposing party.
If a Counterclaim is filed, the Plaintiff must file an Answer to the Counterclaim within 15 days from the date of receipt.
Settlement Proceedings / Alternative Dispute Resolution
Before a case is formally tried, a chance at reconciliation or compromise is first bridged by the courts. Mediation, Arbitration and Conciliation are among the many forms of Alternative Dispute Resolutions which is available in Thailand.
ADR is any kind of mechanism used for settling disputes rather than litigating a controversy in court. ADR is encouraged because the judiciary understands that the longer a dispute persists, the more damage it causes not only to the parties, but to the economy in general. It somewhat gives power to the parties-in-controversy to decide the fate of their dispute, rather than to have the courts adjudicate on their differences.
Only after the court determines that a settlement cannot be reached by the parties can it proceed to hearing the case formally.
After the period for submission of pleadings has lapsed, a pre-trial conference is scheduled by the court. Issues to be discussed during the trial proper are joined at the pre-trial stage. The court uses as basis for the joining of issues the allegations, admissions and denials stated in the pleadings.
Based on the issues joined is the determination of the evidence that may be presented to court during trial.
Disclosure of Documents
While Modes of Discovery are not available in the Thai judicial system, a party may petition the court to subpoena the opposing party for case-relevant documents which are believed to be in their possession or control.
The party petitioning for these documents must apply to the court for the issuance of a subpoena duces tecum. If the documents are produced at trial and the requesting party needs time to study its contents, then he may likewise petition for an adjournment on this ground.