FAQs: Dispute Resolution
and Litigation
Court Procedure
Q.
In what language are court proceedings conducted in Thailand?
A. Court
proceedings in Thailand are conducted in Thai. All documents which
are introduced as evidence must be in Thai or translated into
Thai. Witnesses may testify in a foreign language, but their testimony
must be translated into Thai. In the case of the Intellectual
Property and International Trade Court and the Central Bankruptcy
Court, the Court may approve the use of and accept as evidence
English language documents if agreed to by litigating parties.
Such documents may appear in part or in whole in English. However,
such documents may not be used as evidence for material issues
of the case.
Q.
How is a claim commenced?
A. Proceedings
in all courts are started by the claimant filing a complaint and
paying the court filing fee.
Q. How are the proceedings served
on the defendant?
A. The claimant must file a
petition to request the court to issue a summons. A separate petition
must be filed to request the court officer to serve the complaint
and summons to the defendant. The court officer will then attempt
to serve the defendant within a reasonable time. If the defendant
is not domiciled in Thailand, the proceedings must be served through
the Thai Ministry of Foreign Affairs. Thailand is not a party
to the Hague Service Convention and it may take six months to
a year to serve the proceedings through diplomatic channels.
Q. How long does the defendant
have to file the defense?
A. Depending on the means of
service (personal, by posting or by mail), the defendant has 15
to 30 days from the date of service to file its answer to the
complaint. Frequently, the court grants one or two 15-day extensions.
If the defendant files a counterclaim in time, a court officer
serves it on the claimant, and the claimant also has 15 to 30
days to file an answer (extensions are often available).
Q. What happens if the defendant
does not submit the defense within the deadline?
A. The claimant must submit
a petition for an order that the defendant is in default of answer.
If the claimant does not do so within 15 days of the expiration
of the deadline for the defendant to file the defense, the court
will strike out the case and the court fees will not be refunded.
The defendant may appear to explain the default and if there are
reasonable grounds, the court may allow the defendant a further
period in which to file the defense. In the absence of reasonable
grounds, the court will deem the defendant to be in default. However,
the trial will proceed and the claimant must still prove its case.
The defendant can cross-examine the claimant's witnesses and challenge
the claimant's evidence, but cannot submit its own evidence or
present its own witnesses. This principle also applies if the
claimant fails to file an answer to a counterclaim in time.
Q. What is the procedure following
the filing of the defense to the claim and any counterclaims?
A. The court will schedule
a settlement of issues hearing, at which the court will settle
the issues in dispute and schedule further hearings for mediation
and/or hearings for each party to present its evidence and witnesses.
The court encourages parties to mediate where possible, but such
mediation is not compulsory. Court-supervised mediation sessions
occur before the commencement of the trial hearings. If the parties
are able to reach a compromise, the court will issue a Consent
Judgment giving effect to the terms of the compromise reached
by the parties. This Consent Judgment can be directly enforced
in the event of default.
Q. Is it possible to obtain an
order that the claimant give security for costs?
A. The defendant can apply
to the court for an order requiring the claimant to deposit money
or security with the court for costs and expenses, if either the
claimant is not domiciled or does not have a business office situated
in Thailand or does not have assets in Thailand and in either
case there is a strong reason to believe the claimant will evade
payment of costs and expenses if it is unsuccessful. The Thai
court routinely grants orders for security or a deposit in relation
to foreign claimants.
Q. Does the court have the power
to issue a summary judgment or strike out a claim without merit?
A. The court can rule on an
issue without conducting hearings and dispose of the entire case
or the material issue if a party raises a question of law which,
if decided in that party's favor, would dispense with further
trial of the case, or a material issue in the case.
Q. Are interim injunctions available
prior to trial?
A. Temporary attachment orders
are available pending a final judgment on the merits. The court
orders an attachment if it is satisfied that the defendant intends
to frustrate the claimant's recovery by either transferring the
property in dispute or its other property and/or removing such
property from the court's jurisdiction. The court must also be
satisfied that the claimant has a good chance of succeeding in
the underlying dispute. The claimant may be required to provide
security before the order for attachment is granted, at the discretion
of the court. The amount required as security does not normally
reflect the value of the property attached and is usually a minimal
sum. Other temporary measures available include restraining orders,
orders requiring government agencies to suspend or revoke certain
property registrations, and provisional arrest warrants.
Q. Are such temporary orders available
on an emergency basis, without notice to the other party?
A. Applications for emergency
relief can be made without notice, and are usually considered
on the same or the following day. The applicant's burden of proof
for an emergency application is greater than that for an ordinary
application, as the court requires very strong evidence that an
irremediable injury to the claimant is imminent.
Q. What evidence is admissible
in the proceedings?
A. To be admissible, evidence
must relate to facts that are to be proven by a party to the case
and that have been identified and described in the list of witnesses
and evidence filed with the court, with copies provided to the
other party. Subject to limited exceptions, if another party objects
to the originality or validity of a document, only the original
of the document is admissible. Microfilm, photocopies, emails,
other computer generated copies, and facsimile copies are not
considered best evidence, although the court may exercise its
discretion to admit them into evidence and such forms of evidence
are routinely accepted.
Q. What documents must the parties
disclose to the opposing party and the court?
A. Civil procedure does not
provide for much court-supervised pre-trial discovery. The parties
may attach any document they wish to their pleadings before submitting
to the court. Any further documentary evidence must be listed
and the list of evidence must be submitted to the court with a
copy to the opposing party not less than seven days before the
first hearing for taking evidence. The parties may introduce new
evidence after the deadline for filing the list of witnesses if
the party can show reasonable grounds and if the new evidence
has bearing on a material point at issue.
Q. Is it possible to subpoena
documents from the other party?
A. Although the Civil Procedure
Code authorizes the court to subpoena documents on a party's application,
the courts do not support fishing expeditions, so a request for
documents must be specific. This means that parties usually only
apply for documents they have already seen and know to exist (for
example, a specific agreement or piece of correspondence), or
documents they know must exist as a routine business requirement
(for example, bank statements). Applications of this manner are
granted routinely, but general applications for all documents
related to a matter will be dismissed. Orders compelling disclosure
usually include a deadline, which the court frequently extends
to accommodate the practical burden of compliance.
Q. Are any documents privileged
from inspection?
A. Lawyer-client privilege
is recognized. Any confidential document or fact that is entrusted
or communicated by a party to a person in his capacity as a lawyer
is privileged. This privilege extends to outside counsel, as well
as in-house lawyers and their internal clients. The court can
summon a party to give an explanation to decide if the refusal
to disclose the document is well-grounded or not.
Q. Can affidavits be used instead
of witness testimony?
A. Affidavits are accepted
as evidence in Thai courts. However, little weight will be given
to the affidavit evidence unless the witness appears in Court
for cross examination. A party can cross-examine the witnesses
of the opposing party. After each witness has given testimony,
the court prepares a memorandum of the testimony (which is a summary
rather than verbatim), which is read out to the witness who then
signs the memorandum. However, many courts also have provisions
allowing overseas witnesses to testify by witness statement or
video conferencing.
Q. Are parties allowed to present
expert witnesses?
A. Generally, parties are free
to present their own expert witnesses at trial. Expert witnesses
selected and presented by one party to the dispute usually represent
the interests of that party. However, the expert can be challenged
through direct and cross-examination by the parties, like any
other witness. The fees of an expert instructed by a party to
the dispute are paid by that party.
Q. Can the court appoint an independent
expert witness?
A. The court can, at its discretion,
call an expert if it considers this necessary, or on a party's
application. The court can invite the parties to designate the
expert by mutual agreement, provided that no person can be compelled
to serve as an expert unless he has been entered into the court's
register of experts. Experts appointed by the court are meant
to provide independent advice, and can be challenged by the parties.
Court-appointed experts are entitled to fees and expenses payable
by the court in accordance with applicable ministerial regulations.
Q. What is the burden of proof
in Thai court proceedings?
A. The burden of proof for
civil claims in Thailand is that of proof by a preponderance of
the evidence. Because of the extreme consequences resulting from
criminal convictions, the burden for criminal proceedings is proof
beyond a reasonable doubt.
(May 2009)
The above is intended to
provide general information only. The contents do not constitute
legal advice and should not be relied upon as such. If legal advice
or other expert assistance is required, the services of competent
professionals should be sought.
For further information,
contact Ms. Tiziana Sucharitkul,
Co-Managing Partner & Director of Dispute Resolution Department
(tiziana.s@tillekeandgibbins.com)
or Mr.
Thawat Damsa-ard, Partner
& Chief Litigator (thawat.d@tillekeandgibbins.com).
