DE: Reasonableness of personal delivery of a brief

May 6, 2022 Benn-Ibler Rechtsanwälte

If a court handling an application for reinstatement considers the personal delivery of a brief to be a reasonable means of delivery, the applicant must be given the opportunity to respond before the decision on reinstatement is made. If this is not the case, the right to be heard is violated according to the German Federal Supreme Court (Bundesgerichtshof, BGH).

A lawyer filed a timely appeal against a judgment that was unfavourable to her. She wanted to send the grounds of appeal by fax on the day the deadline expired. However, she was unable to do so because her telecommunications connection was blocked. Her provider assured her that it would be unblocked by the next day. The lawyer then asked the court's office for an extension of the deadline. When the disconnection continued the following day, the lawyer went to the court in person to file the brief and also applied for restitutio in integrum.

According to the lower court, the defendant was not through no fault of her own prevented from filing the statement of grounds of appeal within the time limit. If she had noticed that the connection had been blocked at noon on the last day of the deadline, it had "easily been possible" for her to post the statement of grounds of appeal in person on that day at the Court of Appeal, which was approximately 65 kilometres away. In opposition, the defendant argues in particular that, due to a stroke, it had not been "easily possible" for her to bring the statement of grounds of appeal personally to the Court of Appeal on the day of the expiry of the deadline.

According to the BGH, the application for restitutio in integrum should not have been rejected on this ground. Fault within the meaning of Sec. 233 sentence 1 of the Code of Civil Procedure (Zivilprozessordnung) was not obvious. Here, neither the unforeseeable blocking nor the complete use of the time limit could be blamed on the lawyer. The Higher Regional Court's statement that the lawyer should have delivered the brief in person to the court on the day of the expiry of the time limit does not take into account the reasonableness of the alternative method of delivery. The court should have given the party the opportunity to comment on the question of the reasonableness of this alternative means of delivery.

BGH, VIII ZB 45/21 (08.03.2022)