Civil or civil litigation is a complex process, hundreds of books have been written about its process or partial aspects. But what of it is relevant to the ordinary mortal going to court? How does the court process work under the rules and what to expect if we are heading to a court hearing?
Court proceedings are commenced at the moment when the application for commencement of proceedings (i.e. the action) reaches the court. In some cases, the court initiates proceedings even without an application, in which case the proceedings are initiated by issuing an order. A file is kept for each court proceeding, which is identified by a so-called file number, i.e. a unique designation under which the case can be traced in court. Always use the file number for any communication with the court.
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Thecourt may ask you to correct or complete the application if it is missing something or if it is not clear what the claimant wants. The court will then invite the defendant to make a written statement of defence and, if necessary, to submit evidence. This may be followed by a further statement by the applicant or again by the defendant, depending on the situation assessed by the court. The whole procedure is geared towards the preparation of the oral hearing, which is typical of civil proceedings and is the main part of the proceedings. It is necessary to call the parties, witnesses and other necessary persons and, where appropriate, to obtain expert evidence. The judge must take a thorough look at the case, consider what other documents will be needed and what evidence will need to be taken, etc. Ideally, the matter could be decided at a single hearing. However, this does not usually happen in practice. Rather, the court often tends towards an amicable solution at the first hearing and is not yet ready to decide.
In certain situations, proceedings without a hearing may also be admitted if a decision can be reached on the basis of the documentary evidence submitted, which sufficiently establishes the state of the case and, at the same time, the parties agree or waive a decision without a hearing.
At this stage of the proceedings, the court may also issue an interim measure if the nature of the situation so requires.
Tip: Don’t know which court to go to? We have discussed the powers and jurisdiction of the court in detail in our article.
In certain cases (e.g. where the case has been decided by a payment order, an electronic payment order or a European order for payment), the President of the Chamber may order the defendant to make a written submission and, if he does not entirely agree with the requirements of the application, to describe in the submission all the relevant facts and to attach documentary evidence or, where appropriate, to identify evidence to prove his allegations. A time-limit shall be fixed for that purpose, which shall not be less than 30 days from the service of such order.
The qualified notice shall be served by hand. No substituted service shall be permitted. If the defendant fails to comply with the time-limit for making representations (or fails to state what important reason prevents him from doing so), the claim made in the application shall be deemed to have been admitted. In such a case, the President of the Chamber may give judgment on the plea without a hearing.
The Code of Civil Procedure also provides for a so-called preparatory hearing. In the course of the preliminary hearing, the court ascertains whether the conditions for the proceedings are met and, if necessary, seeks to remedy the deficiencies identified in cooperation with the parties. At this stage, an amicable solution may also be sought, or there may be room for the parties to supplement their allegations and proposals for the taking of evidence to prove them or to fulfil other procedural obligations.
The summons to the preparatory hearing must also be served by hand; alternative service is not possible. Failure to appear at the preparatory hearing without giving an important reason may be dealt with again by a judgment on conviction. If the claimant fails to appear, the court shall dismiss the proceedings.
In practice, however, the preparatory hearing is not used very much and the court usually orders a “classical” hearing directly, but this is often only in preparation for further litigation. Sometimes several hearings are necessary.
For lawyers, court hearings are already a daily occurrence, but we still receive very practical questions from our clients about what they can expect in court and what to bring to the hearing. So let’s go through it one by one.
Firstly, find all the relevant information on the summons (such as what matter you are summoned to, what court, date, time and venue, room or floor). The summons must be served on the parties so that they have sufficient time to prepare, usually at least 10 days before the date on which the hearing is to take place, unless the hearing has been preceded by a preparatory hearing (see above).
If you know you have something important to do on the date (hairdressing or watching a football match does not count), notify the court as soon as possible, preferably in writing. If you can give reasons for your absence (for example, you have sick leave), attach a copy of it. The judge will consider this and then, if necessary, inform the other party and set a new date.
Appear in court with a summons and proof of identity (ID card, passport or driving licence). If you are accustomed to carrying weapons, leave them at home as an exception. When you arrive at the court, you will be checked with a security frame and metal detector and your luggage will be x-rayed. If you have forgotten the rule about guns (or other prohibited items), don’t worry about losing your beloved switchblade, it will just be placed in storage.
Then head straight to the designated floor to the meeting room. Here you will probably meet your lawyer, who will guide you through the hearing. Litigants wait in the hallway before the hearing and enter the hearing room only when the recorder or judge is called, if the hearing is being recorded and there is no recorder.
Dress is, of course, advisable to be polite and clean, rather formal. However, if you do not own a suit or tie, or refuse on principle to wear one, you need not worry that this will be a reason for not being allowed into the courtroom. There is no dress code.
Some matters are decided by the judges themselves (called single judges), others are decided by a group of judges (a panel of judges). The courts allocate cases to judges according to their specialisation (criminal law, civil law) and according to the court’s work schedule. You therefore have no influence on the choice of judge. The reason for changing a judge may be bias, i.e. some judge’s personal relationship or other personal connection to the case at hand. If such bias does exist, it should be expressed by the judge himself. If he or she fails to do so, you can raise the objection of bias yourself.
If the judge comes, those present in the courtroom will rise. Address the judge, Mr. President.
Keep your phone muted in the courtroom and do not comment on the proceedings in any way, for example by shouting or other disapproving language. If you wish to record the proceedings, you must allow the judge to do so. You may only ask questions or make comments with the permission or at the direction of the single justice or the presiding judge. If you wish to speak to the court officials, you must stand. This also applies to the final pronouncement of the judgment.
Evidence is taken at the hearing. In civil proceedings, litigants are obliged (with exceptions) to offer evidence to prove their claims. The court may also take evidence other than that proposed if it is necessary to establish the facts and if it appears from the contents of the file.
The hearing is public. The exclusion of the public is only possible if the public hearing of the case would jeopardise the confidentiality of classified information under the Classified Information Protection Act, commercial secrets or the important interests of the parties.
The President of the Chamber shall invite the applicant to state his case and shall then invite the defendant to make a statement. The President of the Chamber shall announce the outcome of the preparation of the hearing and which evidence may be adduced; evidence shall also be adduced at the oral hearing. The parties may summarise their submissions, comment on the evidence or the law of the case.
Tip: We have discussed the divorce proceedings in our blog article.
The trial may (but need not) end with the delivery of a judgment. It is usually pronounced immediately after the trial, but if the trial is before a panel, it is pronounced after the panel members have deliberated and voted. Sometimes, however, the single judge will adjourn the hearing just for the purpose of pronouncing the judgment.
The judgment shall also include a statement of the remedies available.
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