Ercüment Erdem Att. Alper Uzun

An Important Decision of the Assembly of Civil Chambers of the Court of Cassation Regarding Amendment of Pleading

December 2019

What is Amendment of Pleading?

Amendment of pleading is a legal opportunity, regulated under Article 176 and the following Articles of the Code of Civil Procedure (“CCP”), which allows parties to alter performed procedural actions in whole or in part during the proceedings. Amendment of pleading is also an exception to the prohibition on the extension of claims and defense. By means of amendment of pleading, potential loss of rights due to procedural deficiencies or errors could be prevented over the course of the proceedings.

Amendment of pleading is a unilateral declaration of will. Therefore, approval of the other party or the court is not required. Due to this function of amendment of pleading, controversy regarding when an amendment of pleading could be applied, or to which extent it could be carried out, may arise. One debate concerning this is whether a right that was not claimed (for example, a receivable), while initiating the lawsuit, could be claimed by amendment of pleading afterwards.

Different Views on the Subject

In a case arising from labor receivables, the plaintiff did not request amendment of pleading in its lawsuit petition, but requested severance and notice pay, while increasing claims for other receivables through an amendment of pleading after the receipt of the expert report. Even though these claims were accepted by the court, the 7th Civil Chamber of Court of Cassation overturned this judgment on the grounds that no severance and notice pay had been claimed in the lawsuit petition, the severance and notice pay claims have been brought forward after the submission of the expert report, the amendment of pleading made for such could not mean amendment of pleading of the case as a whole, the application fee should be paid alongside the amendment of pleading fee and, therefore, the amendment of pleading petition cannot be accepted as an “additional lawsuit petition”[1].

The court of first instance that reconsidered the file after the decision was overturned opposed the Court of Cassation’s decision claiming that partial amendment of pleading is possible under Article 181 of the CCP, the Plaintiff could request the claims inadvertently not put forth in the lawsuit petition, or claims subsequently required to be requested with the amendment of pleading petition, forcing the Plaintiff to file a new case, is against the procedural economy principle, and there is no need to pay an application fee in the case of adding a new claim through the amendment of pleading. The 4th Civil Chamber of Court of Cassation and the 9th Civil Chamber of Court of Cassation has opined in this direction, and it is also accepted in the doctrine that the plaintiff filed the lawsuit to reserve its right to amendment of pleading and other rights, payed the necessary fees, and included the severance and notice pay claim in the amendment of pleading petition.

Contrary to the opinions of the first instance court and the 4th and 9th Civil Chamber of the Court of Cassation, the 7th Civil Chamber of the Court of Cassation ruled that in order to add a new claim during the trial process, amendment of pleading of the case as a whole, submission of a new lawsuit petition and payment of admission fee alongside with the advance fee is required, and the amendment of pleading would be valid if it is done in a certain procedural manner pursuant to the claims.

Yet, the 4th Civil Chamber of Court of Cassation ruled that even if it was not requested in the bill of claims, non-pecuniary damages could be claimed through an amendment of pleading[2], while the 9th Civil Chamber of Court of Cassation ruled in a lawsuit filed for labor receivables that claims regarding leaves of absence could also be added to the claims[3].

Assembly of Civil Chambers of the Court of Cassation

The case is reviewed by the Assembly of Civil Chambers of the Court of Cassation (“ACC”) after the decision of the first instance court.[4] The ACC highlighted that the core of the dispute is whether a non-specified claim in the lawsuit petition can be claimed through the amendment of pleading and, firstly, is evaluated within the “principle of formality” and “principle of procedural economy”.

The ACC stated that the procedural law is founded upon the principle of formality, which secures the protection from arbitrariness, equal treatment, etc., but should not be regarded as an inflexible formality, and it should not fall away from the aims of finding the objective truth and just decisions. The principle of procedural economy, which is regulated by the Constitution and the CCP, focuses on easing the proceedings and preventing unnecessary expenses. The ACC stated that in order to achieve a just decision, it is necessary to balance the formality of the procedural law that provides foreseeability for the parties, as well as the principle of procedural economy.

The ACC also emphasized the importance of the conclusion of the claim. It stated that the conclusion of the claim is the one and main element determining the subject of the dispute and should provide what would be decided upon if the claim is accepted by the court. The subject of the dispute is to be determined through conclusion of the claim; therefore, the concept of amendment of pleading is important as it would be possible to change the subject of the case, broaden, or change the claim. The ACC stated that the case can be wholly rectified pursuant to Article 180 of the CCP and can be partially rectified pursuant to Article 181 of the CCP. In this context, in the amendment of pleading of the case, the claims in the lawsuit petition cannot be ruled as the cause of the case, or the subject of the claim is wholly changed. In the partial amendment of pleading, however, the case can be to correct a procedural action, such as broadening the conclusion of the claim.

Within the context of the abovementioned discussion, the ACC stated that the addition of a non-mentioned claim with an amendment of pleading petition does not meet the procedural criteria of a new lawsuit under Article 119 ff. of the CCP. Although it is discussed that the inclusion of a second claim arising from the same cause should not be possible without charging an additional application fee following the precedent of the Constitutional Court regarding the “prohibition of the object of demand”[5] and, therefore, the decision of the first instance court is claimed to be accurate, this is not accepted by the majority of the ACC.

Conclusion

At the conclusion of the evaluation, the ACC ruled on the reversal of the decision of insistence, parallel to its previous decisions[6] and in line with the 7th Civil Chamber of the Court of Cassation and, therefore, ruled that the non-mentioned claim in the lawsuit petition cannot be brought before the court through amendment of pleading.

It is clear that the entire amendment of the pleading of the case, and completion of the procedural processes in compliance with the procedures of bringing an action, is necessary regarding a claim that is not mentioned in the lawsuit petition.

[1] Decision of 7th CC of Court of Cassation, No. 2013/20357 E. 2013/15411 K., 24.09.2013.

[2] Decision of 4th CC of Court of Cassation, No. 2012/5120 E. 2013/4672 K., 14.03.2013.

[3] Decision of 9th CC of Court of Cassation, No. 2007/19071 E. 2007/24482 K., 17.07.2007.

[4] ACC’s decision, No. 2015/7-917 E. 2017/265 K. 15.02.2017, http://www.kazanci.com/kho2/ibb/files/dsp.php?fn=hgk-2015-7-917.htm&kw=%C4%B1slah+ile+`yeni+talep`#fm (Access date: December 2019).

[5] Decision of the Constitutional Court, No. 1/33, 20.07.1999 (OG, No. 24220, 04.12.2000.

[6] ACC’s decision, No. 2014/4-1193 E. 2016/800 K., 15.06.2016, http://www.kazanci.com/kho2/ibb/files/dsp.php?fn=hgk-2014-4-1193.htm&kw=%C4%B1slah+ile+`yeni+talep`#fm (Access date: December 2019).