MONACO Law and Practice Contributed by: Donald Manasse, Donald Manasse Law Offices
It is also possible, under the provisions of the CPC, to request that evidence be produced from a party or a third party (Articles 274, 277, 277-1, 277-2 and 278) during a trial, and a fine ( astreinte ) can be imposed for failure to do so. The extent to which courts will order such disclosure is being tested in the courts. In a recent case, the court refused to order a general dis - closure of “all communications between the bank and the client” relating to an investment because it was not precise enough, even though it would be impossible for the plaintiff/client to plead with greater precision without first reviewing the documents. In criminal proceedings, the investigating magistrate may obtain all information and documentation neces - sary for the “manifestation of the truth”, and the civil party victim will have access to the file and thus the documentation. However, no use can be made of it in related civil proceedings, unless authorised by the investigating magistrate or a prosecutor, as the infor - mation is covered by the “secrecy of the instruction” until the investigation is concluded and the matter is tried. 2.4 Procedural Orders As indicated in 1.7 Prevention of Defendants Dis- sipating or Secreting Assets , the seizure orders are filed ex parte and seeking such measure prior to trial is always an appropriate step. Because the orders are ex parte, the presiding judge will be particularly atten - tive to the good faith of the party requesting them. The presiding judge will refuse any such ex parte request once litigation has begun, as an ex parte request in that event is considered disloyal if the other party is not informed. The defending party may file a criminal complaint if they consider that the judge was misled into granting the order – this is considered to be an escroquerie au jugement , ie, obtaining a judgment by fraud. 2.5 Criminal Redress Victims of fraud often seek redress through the crimi - nal process, becoming parties in the investigation, with access to the file. If they file a complaint with the investigating magistrate with constitution de partie civile , they will be required to deposit a bond, which will be set by the investigating magistrate in accord -
ance with the victims’ financial situation and is usually not more than EUR15,000. Participation in the criminal investigation does not prevent the same victim from initiating a civil lawsuit, which may then be suspended pending the outcome of the criminal investigation. The civil statute of limitations is suspended during the criminal investigation, but if the investigation does not result in the defendant being committed for a criminal trial, the limitation period may be considered not to have interrupted and there is a risk that any subse - quent civil procedure will be time-barred. 2.6 Judgment Without Trial A civil trial will only consist of oral argument by respec - tive counsel (and this will often be reduced to filing the written pleadings and supporting documentation without oral argument; this was particularly the case during the pandemic). There is no live testimony by the parties or witnesses in a civil trial. Nor is there any possibility for a directed verdict where the defence is unmeritorious (or for a motion to dismiss a case where the complaint is unmeritorious or frivolous). The court may restrict the time available for oral argument if it considers the pleadings to have sufficiently addressed the issues. A judgment can be obtained if a defendant does not appear (by default), provided satisfactory efforts have been made to serve through the designated authori - ties under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Con - vention”), or where the defendant does not continue in their defence once they have designated counsel. In this case, the judgment will be considered contradic - tory or adversarial. 2.7 Rules for Pleading Fraud Members of the Monaco Bar, which is restricted to Monaco nationals, are expected to respect the truth and to exercise the profession with dignity, good conscience and loyalty (Article 14 of Law 1.0476 of 28 July 1982). Foreign lawyers pleading before the Monaco courts are expected to maintain the same standards in addition to the standards set by their
239 CHAMBERS.COM
Powered by FlippingBook