Partial And Collective Legal Actions in The New Turkish Civil Procedure Code

September 2011

Partial Action

Partial action is a legal concept which is widely practiced under Turkish Civil Procedure Code (“TCPC”) which will be abolished on October 1, 2011 by the entry in force of the New Turkish Civil Procedure Code numbered 6100 (“New TCPC”). By filing a partial action, a certain part of the plaintiff’s claims will be subject matter of the action, on the other hand, the plaintiff reserves his right to modify the legal action by expanding the claim further concerning a certain part of his claim, and exercises these rights in the future. The plaintiff may claim his additional rights that he reserved in the litigation process, without the need to file a new lawsuit, by means of “amendment”.

The rationale behind filing a partial action was the intention to keep litigation costs minimized. By filing a partial lawsuit, the plaintiff prefers not to bear the full costs of litigation in advance and have the opportunity to defer a percentage of the fees and costs that equates with the remaining part of the claim. Therefore, the plaintiff can avoid paying high amount of litigation cost when filing a lawsuit, and the remaining part of claim can be claimed at a later stage when the plaintiff has a certain degree of inclination about the outcome of the case, by means of partial action, then legal charges are complemented.

The New TCPC, which shall enter into force on October 1, 2011, brings new dispositions, which will completely modify application of partial action in practice.

New dispositions concerning partial action

Article 109 of the New TCPC regulates the partial action as follows:
(1) In the event that the claim may be divided in respect of its nature, a certain part of the claim may be subject matter of a lawsuit.
(2) In the event that the amount of claim is undisputed by the parties, or is clear, a partial action may not be filed.
(3) The partial lawsuit shall not be assumed as a waiver of the remaining portion of the claim, unless the plaintiff explicitly waives his rights while filing a lawsuit.
In the light of the said article, the economic benefits of filing a partial action are eliminated, and the option to file a partial action is limited to the cases in which the claim may be divided in respect of its nature, the amount is disputed between the parties, or not clear. Therefore, the field of application is now narrowed.

Accordingly, “the partial claim” is a claim in which the plaintiff does not claim his receivables in full, but a certain part, and which may only be exercised with regards to claims that may be divided. In the second paragraph of Article 109, it is stated that in the event that the amount of claim is undisputed by the parties, or is clearly determinable, it is not possible to file a partial action. As a result, if there is not any controversy between the parties about the amount of claim, or even if it there is controversy between the parties concerning the amount, the amount can be easily established and may be determined by anyone, a partial action may not be filed.

According to third subparagraph of the said article, one of the biggest problems of the TCPC period is expected to be disappearing. The application of High Court of Appeals resulting in waiver of the rights of the plaintiff who has not reserved its rights while filing the lawsuit shall finally find its implementation to its end. Consequently, even the rights are not reserved; it shall be possible to file a new lawsuit for the rights which are not reserved. The waiver for the not reserved part of the claim may be valid only if the waiver has been explicitly made.

In case the amount of the claim is not definite, a “lawsuit for indefinite claim” may be filed. Due to existence of this new institution, the necessity to file a partial action shall not be valid in scope of New TCPC. Accordingly, the libel suits, which cannot be filed as a partial action could be filed as a lawsuit for an unspecified claim.

In the case where a lawsuit for unspecified claim may be filed, filing a partial action shall not be feasible. Because, the part of the claim which is not included within the scope of partial action shall be subject to prescription and the interest accrued for that part may be claimed only as from the date of amendment, if that part is claimed by the way of amendment.

As a result, the partial action shall not be exercised very frequently and prevalently following the entry into force of the New TCPC and may be filed only in the cases where the claim amount is divisible and the amount is not controversial between the parties or is not clearly identifiable.

Collective Action (Class Action)

The New TCPC brings the possibility to file a “collective action”.

Article 115 of the New TCPC is as follows:
“The associations and other legal persons, within the framework of their status, may file lawsuits in order to protect the rights of its members or of the sphere that they present, for their own names, to determine the rights of relevant persons or to eliminate the illegal situations or violation of the future rights of relevant persons.”
According to this article, in the event that several persons are affected by a violation, a sole lawsuit shall be filed for all these persons rather than separate lawsuits for each individual. Consequently, not only the legal person but also all individuals within this collective group shall benefit from and shall be influenced by the result of the lawsuit. The decision rendered in the end of collective action shall also be used as a precedent judgment in future individual lawsuits that may be taken.

As a result, the collective rights and social utility shall be preserved by collective action.