Request to leave a claim without consideration: sample

A document such as a petition means a written request from one of the participants in the trial to perform the appropriate actions guaranteed by his procedural rights. You can submit a petition in both arbitration and civil proceedings.

Procedural legislation provides for cases in which a filed claim may be left without appropriate consideration (Article 122 of the Civil Procedure Code of the Russian Federation, Article 148 of the Arbitration Procedure Code of the Russian Federation):

• when in judicial proceedings a legal dispute is considered between the same persons, in relation to the same subject, and on the same grounds;
• if the parties do not comply with the pre-trial procedure for resolving a controversial issue;
• when filing/directing a claim by a person who does not have the authority to do so, or who has the status of incapacitated;
• there is an agreement to refer the dispute to arbitration;
• when the plaintiff repeatedly fails to appear in court and there is no application to consider the case without his participation, provided that the defendant insisted on considering the case on the merits or when none of the parties arrived in court and the corresponding petitions were not filed;
• in the case of establishing legally significant facts, a dispute regarding the law has arisen;
• if the submitted claim is subject to consideration within the framework of a bankruptcy case;
• when filing a claim for legal costs.

Such a document as a petition to leave a filed claim without consideration can be submitted only after the court has accepted this statement of claim for its proceedings.

The introductory part of the document must contain the full details of the persons participating in the trial and the name of the judicial body where the statement of claim is being considered, within the framework of which the petition is being filed.

The descriptive part must indicate in detail all the reasons for which the court needs to make a decision to leave the filed claim without consideration.

And finally, the operative part should directly describe the requirement to leave a specific claim without consideration.

If such a need arises, in order to support the arguments for the requirement set out in the petition, it is necessary to attach to it the appropriate evidence base, which can play a decisive role in satisfying the request made by the interested person.

The results of the consideration of the petition submitted to the court are formalized by the latter in the form of a ruling. It should be taken into account that the decision to satisfy or reject the submitted petition relates to the exclusive right of the court hearing the claim.

Important point! At the current stage, such regulatory legal acts as the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation do not provide for the possibility of appealing court rulings that rejected a petition to leave the claim without consideration.

At the same time, the decision to leave the claim without consideration does not exclude the possibility of the plaintiff to re-apply to the court with a statement of claim as soon as the circumstances that served as the reason for refusing to consider the claim have been eliminated.

From the above, we can conclude that the petition for the purpose of leaving the claim without consideration is sent by the interested party, due to the presence of one of the reasons given earlier.

In this case, one should take into account current judicial practice affecting the practical implementation of the issue of using such a document in the relevant legal process.

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Legal grounds

The decision to abandon a claim can significantly change the course of judicial consideration, therefore, the abandonment of a claim under the Code of Civil Procedure of the Russian Federation is handled especially carefully.

There are conditions established in the Code of Civil Procedure of the Russian Federation for the use of this right:

• voluntariness of the decision (the judge checks this circumstance without fail);
• the possibility of filing a corresponding petition at any time during the consideration of the case. In practice, they most often refuse during the pre-trial preparation of the case;
• presentation of a petition only by the plaintiff or plaintiffs jointly or by a representative, if such authority is separately indicated in the power of attorney (Article 54 of the Code of Civil Procedure of the Russian Federation);
• the opportunity to waive claims either in full or in part (a partial waiver of a claim in civil proceedings looks like a reduction in the amount to be collected, or the removal, for example, of non-property claims).

Official website of the Supreme Court of the Russian Federation

The court may return the statement of claim if the necessary documents are not attached to it. But the list is indicated in the procedural codes. And the courts cannot demand anything more than this at the stage of filing a claim. The plaintiffs can provide the remaining documents later - or ask the court to request them from other persons. But in practice, courts may unlawfully refuse to accept a claim due to the lack of additional documents.

Spouses Alexey Kungurov* and Irina Zhdanova* divorced in 2015. The court determined the place of residence of the two children with their mother. And also resolved the issue of the order of communication between the father and his sons - on Saturdays from 15:00 to 18:00 at the boys’ place of residence. In 2021, Kungurov decided to change these rules, so he filed a lawsuit against his ex-wife about the procedure for exercising parental rights. But the Sovetsky District Court of Krasnodar left the claim without progress (case No. 9-674/2019). After all, Kungurov did not provide information about his permanent place of residence, an inspection report on living conditions, information about his financial situation and other documents. In addition, the court referred to the absence in the claim of an indication of the involvement of the guardianship and trusteeship authority in the case as a third party. The court also pointed out that Kungurov did not attach copies of the claim material for the defendant and the guardianship and trusteeship authority. The Krasnodar Regional Court left the decision of the first instance unchanged.

Kungurov did not agree with the position of the courts and appealed to the Supreme Court. He considered the conclusions of the lower authorities illegal. The Supreme Court agreed with this and sent the case for a new trial to the court of first instance (case No. 18-KP9-182).

The Supreme Court emphasized that Article 46 of the Constitution guarantees judicial protection to everyone. Therefore, claims cannot be rejected for reasons not specified in the law. Art. 131 of the Civil Code provides a specific list of what the plaintiff must attach to the statement of claim. Therefore, the Supreme Court concluded that the courts required documents from Kungurov that he was not obliged to provide at the stage of filing the claim. The court could receive these papers at the stage of preparation for the case. After all, Art. 150 of the Code of Civil Procedure obliges the judge, when preparing the case for trial, to interview the plaintiff or his representative. Also offers, if necessary, to provide additional evidence within a certain period.

The Supreme Court, in particular, recalled Art. 132 of the Code of Civil Procedure, which states that copies of the claim material must be attached only when the defendant and third parties do not have them.

But lower courts ignored these rules.

Lawyers about the case

According to Andrey Panov, a lawyer at Allen & Overy, the position of the lower courts contradicts the very idea of ​​adversarialism, which assumes that the court evaluates the entire body of evidence as part of the process, and not at the stage of accepting a claim. Dmitry Melkov, senior lawyer at the Kursiv Legal Partnership, adds that such a solution is not the only one. “Previously, the Supreme Court has repeatedly expressed a similar position, for example, in the Ruling of the Supreme Court dated August 26, 2021 No. 32-KG19-21,” the expert shares.

The position of the Supreme Court is also important because sometimes the plaintiff may not have the necessary evidence. He has the right to ask the court to claim them, but first the court must accept the application for proceedings.

Experts explained how the vessels' failures could be explained. “This happens when the amount of the claim is significant or when the claims against one of the co-defendants are not obvious. But, as a rule, the court is ready to resolve such issues even after the claim has been accepted for proceedings,” shares Viktor Petrov, head of the arbitration practice of VEGAS LEX. INTELLECT senior partner Roman Rechkin talks about the formal reasons for refusal: “Courts especially often make such (inflated) demands in the pre-New Year period, when the courts are busier than usual. Leaving the statement of claim without movement allows the court not to formally accept the claim for proceedings and not to consider it.”

Sergey Kislov, a partner at the Kovalev, Tugushi and Partners team, also sees the reason for the overload of courts of general jurisdiction and tells how lawyers are struggling with the problem of “immobilization”: “In order not to waste time, we have to agree with the illegal determination to leave the claim without progress. It is always faster to send the “necessary” documents than to challenge a judicial act. In rare cases, when the court requires confirmation of facts that is impossible, it is necessary to challenge it.”

When courts do not accept claims

Pravo.ru experts spoke about cases where courts unlawfully leave claims pending or return them. They may require the following documents:

• Insufficient evidence

In court, you may also face the fact that the case will be immobilized because, in the judge’s opinion, insufficient evidence has been presented. Denisov talks about such a dispute. The Perovsky District Court of Moscow left the claim without progress and pointed out the absence of all documents that confirm the notification of other members of the housing cooperative about the filing of the claim (case No. M-3683/2018). The Moscow City Court (case No. 33-39738/2018) overturned this decision. The judge's arguments about the insufficiency of documents cannot serve as an obstacle to the protection of rights. At the same time, the court is not deprived of the opportunity to clarify the necessary circumstances during pre-trial preparation and trial.

Oksana Peters, partner at Eversheds Sutherland, talks about a similar situation: “The court of first instance refused to satisfy the petition to enforce the decision of a foreign court. The first instance required the attachment of documents that were not mandatory, were not related to the subject of the dispute and were of a purely “technical” nature. The appeal overturned the court's ruling and indicated that: 1) the court did not have the right to refuse the petition on this basis, 2) additional documents, if necessary, could be presented by the applicant during the court hearing.

• Original instead of copy

Sometimes copies of documents are not enough for courts, and questions about authenticity arise when the claim has not yet been accepted. This happened in the practice of Irina Kuznetsova, managing partner of MCK LAW: “They demanded from us the original expert’s opinion, although a copy was attached to the statement of claim.” The plaintiff was given a period to correct the “error.”

• Evidence of prejudice

Art. 69 of the APC exempts from proving circumstances that are established by a judicial act of the arbitration court that has entered into legal force, if the same persons participated in the case. There is also no need to prove information that was established by a court of general jurisdiction and is relevant to the persons participating in the present dispute. But the courts do not always remember this. “In bankruptcy cases, courts sometimes leave without progress applications where claims are based on decisions presented to the court. The acts have already entered into force; they have prejudicial significance. But arbitration courts ask to attach, for example, the agreement on the basis of which those very decisions were made,” says Velyuga.

• Inventory of attachment

Sometimes, for courts of general jurisdiction, receipts for sending the claim to the defendant with attachments are not enough. “They began to often ask for an inventory of investments in a valuable letter as evidence of sending the claim to the defendant,” says Egor Kovalev, a lawyer at the Delcredere Bar. Thus, the courts only complicate access to justice, Kovalev believes.

• No diploma

After the changes came into force in October 2021, for many categories of cases, the presence of a higher legal diploma has become mandatory. This became the reason for the return of claims. Peters considers this behavior of the courts to be unlawful. “The courts are returning statements of claim on the grounds that they were not accompanied by copies of documents on higher legal education or an academic degree in a legal specialty. This contradicts Art. 126 of the APC, which establishes an exhaustive list of applications. It doesn’t say anything about diplomas.” For example, the rulings of the Arbitration Court of the Republic of Mordovia dated December 10, 2021 in case No. A39-14125/2019 and of December 09, 2021 in case No. A39-13996/2019, the Arbitration Court of Moscow dated December 17, 2021 in case No. A40-321967/2019, Resolution of the Seventeenth Arbitration Court of Appeal dated November 12, 2021 No. 17AP-16545/2019 in case No. A50-29533/2019.

• Documents on payment to representatives

You can find yourself in a situation where, even before accepting a claim, the courts begin to require documents on settlements with representatives. Victoria Veluga, a lawyer at the Intellectual Capital firm, shares a case from practice: “It happened that the courts demanded proof of payment for legal services even before they accepted the claim for proceedings. Moreover, the demand for recovery of legal costs was stated as additional.”

* Full name changed by the editors.

Alina Winter

When claims are waived

The law does not separately indicate the reasons for making such a decision, and this is quite logical: in practice there are many situations. The main thing is that the plaintiff acted strictly voluntarily and was aware of the consequences. The reasons for the court are not of great importance if the decision does not violate the rights of other persons and does not contradict the current legislation.

Typically, already stated claims are waived in the following cases:

• the defendant fulfills the obligations imposed on him, that is, a waiver of the claim is issued in connection with the voluntary satisfaction of the requirements;
• termination by the defendant of actions that violate the rights of the claimant;
• loss of relevance of the dispute due to the applicant’s receipt of information, the occurrence of certain events and for other reasons;
• loss of interest in the dispute, etc.

Application requirements

Article 39 of the Code of Civil Procedure of the Russian Federation does not contain requirements for the plaintiff to refuse the claim, even for its execution in writing; how to refuse to consider the statement of claim in a civil case is decided by the plaintiff independently (in writing or orally). The refusal may be recorded in the minutes of the court hearing under the signature of the interested person with an explanation of the consequences. But most often the document is drawn up in writing and presented to the court at a court hearing or through the office. It is allowed to be sent by registered mail with notification (to verify the date and fact of receipt of the document by the court) or through the court’s website if there is a qualified electronic signature.

There is no unified form or form with mandatory details. The main thing is that the plaintiff or an authorized representative signs the document and indicates in it that the claims are withdrawn.

How to appeal a determination: step-by-step instructions

The petition is submitted in the following order:

1. Submit your request in writing. Oral petitions are accepted only during the court hearing - they are recorded in the minutes. In this case they are irrelevant.
2. File a petition with the court that issued the disputed document. You or your legal representative – a lawyer – have the right to do this. Also, the determination may be canceled at the initiative of the defendant who missed the hearings without prior notice twice.
3. Wait for a new ruling to cancel the disputed one.
4. Come to the meeting at the appointed time or submit a request for consideration in absentia.

Lawyer's advice: it's easier to re-file the claim. It must indicate that you have previously filed a similar dispute. In most cases, petitions for annulment are not granted: judges always find arguments in their favor.

Valid reasons for individuals

The determination may be challenged by the plaintiff or defendant by providing evidence of valid reasons for failure to appear at the meeting after a second summons:

• Disease;
• Stay on a business trip;
• Caring for a seriously ill relative or child;
• Late receipt of notification of a meeting: for example, on the day of its holding;
• Death of a close relative;
• Force majeure circumstances: fire, flood, war, etc.

There may be other valid reasons, but the issue of their acceptance is decided individually.

Valid reasons for legal entities

While it is easy for ordinary citizens to confirm good reasons, it is more difficult for organizations.

The following cannot be used as such reasons:

• Lack of a lawyer on staff;
• The need to coordinate the filing of a petition or appeal with a higher authority;
• The applicant's lawyer or lawyer being on vacation, business trip, or on sick leave;
• Reorganization of the enterprise, during which there is a change of management.

The only option for a company whose representative did not appear at the hearing is late notification of the date of the meeting or lack of information about the disputed document.

Contents and sample of the application

The form of applications is not established by law.

To be accepted, the following information must be provided:

• Name and address of the court;
• Full name, addresses of the plaintiff and defendant;
• The name of the previously pending case;
• The grounds on which the decision to dismiss the claim was made;
• Valid reasons, request for cancellation;
• Description of submitted documents.

At the end the applicant signs.

Sample of a private complaint against a court ruling: alt: Private complaint against a court ruling

Sample of a private complaint against a ruling by a magistrate: alt: Private complaint against a ruling by a magistrate

Documentation

The citizen who filed the petition must submit documents confirming valid reasons for missing a meeting twice:

How to compose correctly

In order for the court to accept without objection a motion to dismiss the claim, it must be presented competently and clearly. It is not necessary to refer to legal norms, although it is advisable to indicate that the citizen understands that the case will be terminated without the possibility of its resumption. The usual details for this form are:

• a heading indicating the court and parties to identify the application;
• name of the form;
• text expressing your decision and motivation;
• signature and date.

Here is an example of a waiver of claims in civil proceedings, drawn up according to all the rules:

One more example:

Sample application

The application to leave the claim without consideration is drawn up in triplicate. One remains with the applicant, the second is handed over to the court, and the third is sent to the other party to the dispute. All participants in the case should familiarize themselves with the document in order to have an idea of ​​what the opposite side of the dispute wants.

It is important to competently approach the preparation of the procedural document. Errors and typos are unacceptable. The court will check. If it is necessary to leave a claim without consideration, then it is recommended to approach the matter carefully and professionally. A sample petition template will help with this.

Petition to leave the statement of claim without consideration PDF 59.50 KB

Application form for leaving a claim without consideration WORD 17.50 KB

Example of a request to leave a statement of claim without consideration WORD 19.00 KB

Money spendings

In accordance with Art. 101 of the Code of Civil Procedure of the Russian Federation, legal expenses of the party who made such a decision are not compensated. In addition, the defendant has the right to file an application for reimbursement of expenses incurred in connection with the conduct of the case, which is granted by the court. Legal expenses include both state fees and payment for the services of a representative, compensation for time spent, travel expenses, etc. There is only one exception to this rule: when the defendant satisfies the claim after filing an application with the court.

Consequences

First of all, the Civil Procedure Code of the Russian Federation associates the consequences of abandoning a claim with the impossibility of filing this application again. In accordance with Art. 220 of the Code of Civil Procedure of the Russian Federation, the court case is terminated with the acceptance of such a petition by the court. This means that between the same parties on the same dispute it will not be considered again. This is the rule set out in Art. 220 of the Code of Civil Procedure of the Russian Federation, there are no exceptions to it. In addition, the negative consequences include the need to incur legal costs and pay them to the defendant if there is a corresponding application from him.