The General Assembly of Civil Chambers Decision on the Scope of the Prohibition of Expanding and Amending Claims and Defenses and Failure to Respond to the Complaint
Introduction
The judgment of the Court of Cassation General Assembly of Civil Chambers dated 24.06.2021 and numbered 2017/144 E. 2021/834 K. (“Decision”) puts emphasis on the defendant"s failure to respond to the complaint, and the scope of the prohibition on expanding and amending claims and defenses, which are notions prone to controversy in Turkish law. In this article, the aforementioned Decision, the legal notions mentioned in the Decision, and the conclusion reached are discussed.
The Concrete Case Subject to the Decision
The case subject to review involved the collection of the compensation paid by the plaintiff to the insured pursuant to a transportation commodity insurance contract, from the defendant who is alleged to be responsible for the accident due to the fact that the tangerine commodity was completely lost as a result of a traffic accident that occurred while being transported by the vehicle belonging to the defendant.
Despite the duly served notice, the defendant did not respond.
The Mengen Civil Court of First Instance decided to accept the case and collect the damage from the defendant on the grounds that the defendant’s wrongful action caused the vehicle under his management to have an accident, that the accident caused the complete loss of the commodity, and that therefore, the defendant should be liable for the damage caused. The defendant"s attorney filed an appeal against the decision.
The 11th Civil Chamber of the Court of Cassation decided that the decision should be reversed on the grounds that the expert report, which was served on the defendant, should have been served to the attorney, as law requires service of notice on the attorney in lawsuits pursued via attorney.
The Mengen Civil Court of First Instance, which examined the file upon reversal, decided to partially accept the case since there was no review and reversal on the merits on the grounds that the decision of reversal was related to a procedural defect, the said procedural defect had been resolved by notifying the defendant"s attorney of the expert report.
Upon the defendant attorney’s appeal, the dispute was conveyed to the 11th Civil Chamber of the Court of Cassation for the second time. As a result of the examination, 11th Civil Chamber emphasized that the court of first instance misinterpreted the judgment of reversal, and considered notification of the expert report to the defendant"s attorney was sufficient on the grounds that the annulment was related to a procedural defect, and therefore the requirement of the judgment of reversal was not fulfilled. Furthermore, the 11th Civil Chamber held that the expert report should have been served on to the attorney and pursuant to his/her objections an additional report should have been obtained from the same committee or a new report should have been obtained from another expert committee, and that this expert report should have been evaluated together with all the evidence available in the file and a decision should have been made according to the result. Therefore, the decision of the first instance court was reversed for the second time.
The Mengen Civil Court of First Instance persisted in its decision on the ground that the defendant"s attorney was given notice of the expert report on the ascertainment of defect upon the Court of Cassation"s reversal decision, but the attorney did not make any objections to the report regarding degree of negligence, the objection was related to the price of the tangerine commodity that was not brought forward before the reversal, and that it was a violation of the rules of procedure to put forward new and different issues that were never litigated at trial.
Upon the appeal of the defendant"s attorney of the decision to persist, the dispute was brought before the General Assembly of Law.
In its Decision, the General Assembly of Civil Chambers stated that the dispute was based on the issue of whether the assertion of facts (other than the content of the expert report) was within the scope of the prohibition on extension of the claim and defense, as the defendant had failed to respond within the time limit, and, depending on to the outcome of this issue, whether it was necessary to receive an additional report from the same committee or a new report from another expert committee in order to meet the objections of the defendant"s attorney.
A General Overview of the Issues
Failure to Respond to the Complaint Within the Time Limit
Pursuant to Code of Civil Procedure numbered 6100 (“CCP”) Art. 128, the defendant, who has not submitted a reply petition within the time limit, is deemed to have denied all the facts put forward by the plaintiff in the petition.
"The defendant, who has not submitted a reply petition by the due date, shall be deemed to have denied all the facts put forward by the plaintiff in the lawsuit petition.”[1]
As stated in the Decision by referring to the relevant scholarly literature,[2] a defendant, who has not filed a reply is assumed to have contented themselves with just denial, and can only defend within the framework of denial at the preliminary examination and investigation stage and can show evidence to that effect.
Prohibition of Expanding and Amending Claims and Defenses
Art. 141 of CCP titled “Expanding or amending the claim and defense” has been amended with Art. 15 of the Law numbered 7251 dated 28.07.2020. The first paragraph of the article before the amendment is as follows:
“The parties may expand or change their claims or defenses freely with the reply and rejoinder petitions, but only with the express consent of the other party during the preliminary examination phase. If one of the parties does not come to the preliminary examination hearing without an excuse, the arriving party may expand or amend its claims or defenses without the consent of the other party. The claim or defense cannot be extended or amended after the preliminary examination phase has been completed.”[3]
The Decision states that for a defendant who is deemed to have denied case because they did not respond within time limit, an assertion or explanation of an issue that is included in the content of an existing fact does not mean that a new fact is put forward. The General Assembly of Civil Chambers emphasis that it is possible for the defendant to show counter-evidence to prove that the facts asserted by the plaintiff in the lawsuit petition are not true; however, that new facts cannot be brought forward under the pretext of showing counter-evidence, as this would be an extension of the defense.
The General Assembly of Civil Chambers also underlines that it is necessary to make a distinction in terms of defense and objections. While defenses are the defendant"s right to refrain from fulfilling an action for a specific reason, objections are the facts that prevent the birth of a right or require its termination.[4] Objections must be taken into account by the judge as it is understood from the file. Likewise, the Decision emphasizes that the objections that are included in the case file and that are among the case materials, are not an extension of the defense.
In this case, it is understood that the plaintiff made a payment to the insured by calculating the price of tangerines from TRY 1. Within this scope, the General Assembly of Civil Chambers concluded that facts claimed by the plaintiff"s attorney (that the defendant was at fault and that the price of the tangerine should be accepted as TRY 1) were denied by the defendant by not submitting a reply petition.
Furthermore, The General Assembly of Civil Chambers stipulates that the court of first instance decided by ignoring the defendant denied the fact that the price of tangerines was TRY 1 by not submitting a reply petition and only by obtaining an expert report in terms of degree of negligence. Moreover, in the Decision, it is stated that considering the defendant shall also be deemed to have denied the price of the tangerine, an examination and research should have been carried out by evaluating the evidence in the file in this respect.
However, the General Assembly of Civil Chambers also determined that the defendant attorney’s petition against the expert report that stated only that tangerines were defective (without objecting to the defect rate), and that an expert report should be prepared by taking this matter into account, was in the nature of expanding the defense. In this respect, the Decision emphasizes that it was not possible to consider this defense of the defendant within the scope of the prohibition of expanding and amending the claim and defense.
Consequently, with the acceptance of the defendant attorney"s objections to appeal, the General Assembly of Civil Chambers decided that the decision to resist should be reversed in accordance with Art. 429 Code of Civil Procedure No. 1086 in force with reference to Provisional Art. 3 of the CCP.
Conclusion
This decision is remarkable in that it examines the legal consequences of not submitting a reply petition within time limit and the scope of the prohibition of expanding or amending the claim and defense. The General Assembly of Civil Chambers has concluded that the plaintiff denied the price of the commodity subject to the dispute by not submitting a reply petition (in the face of the claimant"s claim for compensation by calculating the price of the commodity subject to a certain value in the lawsuit petition). In this context, the General Assembly of Civil Chamber pointed out that the defendant"s assertion or explanation of an issue that is included in the content of the present facts case did not mean putting forward a new fact. On the other hand, the objection of the defendant, based on the fact that the tangerines were deficient, was evaluated within the scope of the prohibition of expanding and amending the claim and defense.
[1] Translated by the author.
[2] Pekcanıtez, Hakan: Medeni Usul Hukuku Temel Bilgiler, Volume 2, On iki Levha Yayıncılık, 2017, p. 1206
[3] Translated by the author.
[4] Pekcanıtez, p. 1208-1209
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