Pre-trial phase and pre-trial judge (mise en état)

The pre-trial phase (mise en état) is the stage of the case during which the parties exchange their written submissions and exhibits under the supervision of a judge, the pre-trial judge (juge de la mise en état), until the case is ready for judgment. It is the hallmark of the ordinary written procedure before the judicial court, governed by Articles 780 et seq. of the French Code of Civil Procedure. It ends with a closing order, after which the case is referred to the oral hearing.

Role of the pre-trial judge

The judge ensures that the proceedings are conducted fairly, in particular that submissions are exchanged and exhibits disclosed on time. The judge sets a timetable, may issue directions to counsel and may hear the parties. Since the 2019 reform, the judge has exclusive jurisdiction, until relinquishing the case, to rule on procedural objections and on incidental applications that bring the proceedings to an end, as well as on pleas of inadmissibility. The judge may also award an interim payment, order provisional measures and any investigative measure, in particular a court-appointed expert examination.

Framework of the written submissions

The final submissions must restate all claims and arguments, and the court rules only on those. After the closing order, no new submission or exhibit is in principle admissible, unless the order is revoked for a serious cause that has come to light since. Orders of the pre-trial judge can in principle be appealed only together with the judgment on the merits, save in the cases exhaustively listed in the Code, where an appeal lies within fifteen days.

The pre-trial phase in patent litigation

Before the Paris Judicial Court, the pre-trial phase organises the technical debate on infringement and on the validity of the patent, often over several rounds of submissions. The judge rules on requests for disclosure of exhibits, on the exercise of the right of information and on confidentiality measures. Before the Unified Patent Court, the written procedure is followed by an interim procedure conducted by the judge-rapporteur, which follows a similar logic but under much tighter deadlines.

Key points

The pre-trial phase is where control of the timetable is won or lost. Procedural objections should be raised before the pre-trial judge, failing which they can no longer be put to the trial bench. All relevant exhibits must also be produced before the closing order, as delay is penalised by their exclusion from the proceedings.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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