OGH: No Restrictive Interpretation of Section 184 ZPO

Dec 16, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has clarified that the right to ask a question under Section 184 of the Austrian Code of Civil Procedure (Zivilprozessordnung, ZPO) is not restricted to facts that lie only within the sphere of the party being questioned.

The initial case was an action for damages brought by the insolvency administrator of a GmbH (limited liability company) against its auditors. He accused the defendant auditing company of having carried out the audits in breach of due diligence and having wrongly issued unqualified audit reports with regard to the annual financial statements. An independent expert came to the conclusion that the documents and evidence submitted were not sufficient to assess any potential incorrectness of the annual financial statements with regard to claims against subsidiaries.

The plaintiff requested that 15 questions on the existence of documents be put to the managing director of the auditing company pursuant to Section 184 ZPO. The questions pertained to requesting, receiving, being familiar with and preparing documents by the defendant. The plaintiff only had in his possession those documents that were obtained during his employment.

The trial court admitted these questions. The appellate court did not. It held that a restrictive interpretation was appropriate and that the reason for the lack of information on the part of the party asking the questions (and, in this case, the party with the burden of proof) should be taken into account.

The Supreme Court again allowed the questions, arguing:

The procedural duty to cooperate by the party not burdened with evidence to investigate the truth also includes providing information about facts that are not exclusively within the party's own sphere. This duty exists in all cases in which the opposing party has difficulties of proof or when information deficits cannot be easily overcome. The prerequisite for this is a conclusive presentation on which any questions to the opposing party can be based. The right and the duty to provide information may also arise from material law. Such a right can, in particular, be asserted vis-à-vis an insolvency administrator when the insolvency debtor has retained the auditing company.

OGH 4 Ob 78/22g (18 October 2022)