Ercüment Erdem Att. Piraye Erdem

The Review of the Decision of the Court of Cassation as a Result of the Appeal for the Sake of Law

December 2019

Introduction

In its decision numbered 2019/6552 E. 2019/17198 K. and dated 02.10.2019 (“Decision”),[1] the 9th Civil Chamber of the Court of Cassation (“Court") has examined the first instance court's decision upon the request of appeal for the sake of law by the Ministry of Justice and the Court of Cassation Prosecutor's Office. The first instance court has rejected the case on procedural grounds that the advance payment of evidence required for expert review has not been deposited within the definitive period given set forth by the court.

The court made an evaluation that would constitute a precedent by emphasizing the concepts of advance on evidence and advance on costs. Consequently, it was concluded that the advance payment to be taken for submitting evidence is not a cause of action, unlike the advance on costs and, therefore, the decision of rejection on procedural grounds is found to be incorrect. According to the Decision, the first instance court should have made a decision based on the present evidence by accepting that the party has waived that evidence. As it will be examined below, misunderstanding the difference between advance on evidence and advance on costs would result in negative consequences in terms of the outcome of the case. The Decision has focused on the characteristics of these two concepts and reached significant conclusions in terms of procedural law. The decision is also important due to the fact that it has been given as a result of appeal for the sake of law.

Summary of the First Instance Court Decision

The first instance court granted two weeks as the definitive term for the plaintiff and warned the plaintiff’s attorney that in the absence of advance payment for evidence, the plaintiff would be deemed to have waived its right to refer to that evidence. However, the plaintiff’s attorney did not pay the advance on evidence for the expert examination within the granted definitive term, but paid only after the expiry of a two-week period. According to the decision of the first instance court, if any of the parties relies on evidence, it is compulsory to pay the advance on this evidence. Therefore, as the expert review is requested in the statement of claim, the plaintiff must pay the advance on evidence. It was concluded in the decision that the plaintiff has renounced to rely on this evidence, since he did not deposit the advance on evidence within the definitive period, and the case was rejected on procedural grounds.

Request for Appeal for the Sake of Law

The applications to appeal for the sake of law have been made by the Ministry of Justice’s notification dated 02.08.2019 and numbered 1159/19357, and the notification by the Court of Cassation Prosecutor's Office dated 21.08.2019 and numbered 2019/83943. Both authorities indicated that the cost required for the expert report on which the plaintiff relied should be accepted as advance on evidence; it is a mistake that the first instance court rejected the case on procedural grounds by accepting the required amount as advance on cost while it should have made a decision on the merits of the case with the present evidence, in accordance with Article 324 of the Code of Civil Procedure numbered 6100 (“CCP”) entered into force on 01.10.2011.

Concepts of Advance on Cost and Advance on Evidence

The Decision states the advance of costs is regulated as a cause of action under Article 114/1-g of the CCP and defines causes of action. Accordingly, causes of action are conditions that are required for the court to evaluate the merits of the case. In other words, causes of action are conditions regarding public order, not to bring an action, but for the court to examine the merits of the case.

The nature of advance of costs as a cause of action is not disputed, since there is an explicit provision stating this. Pursuant to another provision regarding advance on costs, Article 120 of the CCP, the plaintiff shall deposit the fees for the proceedings, and the amount that is stated in the tariff issued annually by the Ministry of Justice to the court’s pay desk when bringing an action. The second paragraph of the abovementioned provision regulates that in the case where the deposited amount is insufficient, the court will grant two weeks of a definitive period to the plaintiff to cover the costs.

The advance on evidence is regulated in Article 324 of the CCP:

Advance on Evidence

Article 324

(1) Each party shall deposit the advance determined by the court for the evidence which it requests for presentation within a definitive period of time. If the parties jointly request the presentation of the same evidence, they shall pay the required advance by one-half, each.

(2) If one party fails to meet its advance payment obligation, the other party may deposit it. Otherwise, the presentation of the evidence shall be deemed to have been waived.

(3) The provisions on lawsuits and cases which the parties cannot dispose of freely are reserved.

The Decision refers to Article 205 titled “Payment of Fees, Advance on Costs and Advance on Evidence” of the Regulation on Performing the Administrative and Editorial Services of the Regional Courts of Justice and Courts of Original Jurisdictions and Public Prosecutor’s Offices. The said regulation is important in order to understand the difference between advance on evidence and the advance on costs:

Payment of Fees, Advance on Costs and Advance on Evidence

Article 205

(…)

(3) If it is understood during the hearing that the advance on costs is insufficient, the court shall give the plaintiff two weeks as the definitive period for the completion of this deficiency. If the advance on costs, which is a cause of action, is not deposited or completed, the case shall be rejected due to the absence of the cause of action.

(4) Each party shall deposit the advance determined by the court for the evidence for which it requests its presentation within a definitive period of time. Advance on evidence refers to the amount to be paid by the parties within the definitive time specified by the court for covering the expenses of the evidence on which the parties rely. If the parties jointly request the presentation of the same evidence, they shall pay one-half of the required advance, each. If one party fails to meet its advance payment obligation, the other party may deposit it. The party who does not deposit the advance on evidence shall be deemed to have waived the presentation of that evidence. The provisions of lawsuits and cases upon which the parties cannot dispose of freely are reserved.

By evaluating the provisions of the CCP and the regulation together, the Court of Cassation states that the advance on costs, which is a cause of action, should be taken into consideration for the litigation costs other than the cost to provide evidence. Pursuant to the Decision, it is not possible to evaluate the costs for hearing a witness, obtaining an expert report, or for the court to viewing within the scope of advance on costs as per Article 324 of the CCP. The previous decisions of the Court of Cassation confirm this situation[2].

Conclusion

The Court of Cassation, with its decision numbered 2019/6552 E. and 2019/17198 K., has examined the concepts of advance on evidence and advance on costs, and concluded that they are separate concepts with different effects as to the course of the case. The advance on costs regulated under Article 114 of the CCP is a cause of action, while the first instance court must reject the case in the absence of advance payment of costs on procedural grounds before examining the merits, it is not applicable for advance on evidence. In this case, the first instance court should make a decision on the merits of the case with the present evidence when it realizes that the advance on evidence has not been deposited by the related party within a definitive period.

[1] Official Gazette, No. 30968, 04.12.2019.

[2] Decision of the General Assembly of the Court of Cassation, No. 2017/2528 E. 2018/114 K., 07.02.2018 (www.kazanci.com); Decision of the 13th CC of the Court of Cassation, No. 2016/24537 E. 2017/2528 K., 27.02.2017 (www.kazanci.com).