Appeal filed by an attorney without power to appeal. Effects

The High Court of Cassation and Justice ruled that, should an appeal be filed by a litigant in absence of a power of attorney for this particular stage of trial, choosing the headquarters (by means of the request for appeal form) at the private practice of the defendant at the time of the first hearing cannot be considered a valid procedural act which is undertaken on behalf of the party. Thus, the operation cannot be considered as constructive notice to the High Court. In this direction, the same Court showed that the procedural acts (citations, communications etc.) cannot be undertaken validly unless this is done at the social headquarters of the plaintiff, and not at the alleged chosen one. This happens on the grounds that, in absence of a contract which is specific for the appeal, there is no certainty that the choice of residence was a result of the manifestation of willingness of the appellant itself. Moreover, the legal assistance contract or the judicial representation one were the sole legal acts by means of which one could have expressly determined the extent of the powers that the client has offered to his attorney, as it is stated in Art. 131 of the Statute of the attorney. In the present case, the High Court has further maintained that the party, as it was subpoenaed by the Court of Appeal at a different address than the one of its social headquarters (namely, at the address of the attorney, which did not represent a validly chosen headquarters), was unaware of the obligation to pay the judicial taxes that were specific for this means of appeal and that were mentioned in the subpoena. Hence, the judgment by means of which the appeal has been rejected on account of non-payment of the judicial taxes had been given in breach of the procedural forms, as provided by law. The said breach is sanctioned with nullity, which, by all means, represents a ground for annulment as stated in Art. 304, pt. 5 of the Code of Civil Procedure. (Decision no. 1457 of the 16th of May 2014, given by the 2nd Civil Division of the High Court of Cassation and Justice, covering the appeal against a decision to annul the previous appeal)

:: The Source:

Andreea LUCACI

Related posts

LinkedIn | Facebook