Contents
I. Introduction
A. General
B. The case
II. Attempt to settle
A. England and Wales
1. letter before action
B. Germany
C. Settlements before trial (Chart 1)
III. Alternatives to litigation
A. England and Wales
1. Arbitration
2. Alternative Dispute Resolution (ADR)
B. Germany
IV. Where to litigate?
A. The civil court system of England and Wales (first instances)
1. Magistrates' Court's
2. County Courts
3. The High Court
a) Queen's Bench Division
b) Chancery Division
c) Family Division
B. Overview of the court structure in England and Wales (Chart 2)
C. The civil court system of Germany (first instances)
1. Challenges to the assumption of jurisdiction
2. Local court (Amtsgericht)
3. District court (Landgericht)
D. Overview of the ord. civil court structure in Germany (Chart 3)
V. The appellate courts
A. England and Wales
1. Court of Appeal
2. House of Lords
3. European Court of Justice
B. Germany
1. Higher regional court (Oberlandesgericht)
2. Federal court of Justice (Bundesgerichtshof)
3. Federal court of Constitution (Bundesverfassungsgericht)
4. European Court of Justice (Europäischer Gerichtshof)
VI. The Pre-Trail
A. England and Wales
1. The Writ
2. The Statement of Claim
3. The Defence
4. Cross-claims
5. Close of pleadings & Discovery of documents
6. Advice on evidence
7. Interrogatories
8. Notice to produce a document
B. Germany
1. The Writ (gerichtliches Mahnverfahren)
2. The Statement of claim (Klage)
3. The Defence
4. Cross-claim (Gegenklage)
5. Pre-Trial meetings & communications
C. Major differences
VII. The Trial
A. England and Wales
B. Germany
C. Major differences
VIII. Legal costs & Statistics
A. England and Wales
B. Germany
C. Cost of litigation in England and Germany (chart 4)
D. Duration of proceedings (chart 5)
E. The population per lawyer ratio (chart 6)
IX. Summary
X. References
Introduction
Most commercial contracts are carried through to completion without serious difficulties. Such differences as do arise from time to time are also often resolved by discussions between the parties. But sometimes they cannot agree, and it is necessary to resort to an outside individual or tribunal to settle the matter. It is therefore very important to have a good working base for civil proceedings.
The UK has a unitary legislative system. There is one legislature for the whole of the UK, but three separate legal jurisdictions: England and Wales, Scotland and Northern Ireland.
The UK does not have a written constitution. The sources of law are what Parliament lays down in Acts of Parliament and in subordinate legislation as interpreted by the courts, and court decisions on areas where Parliament has not acted - common law strictu sensu. It is a case law legislation.
The law of Germany is predominantly written law. Articles 70 et seq. of the Constitution allocate legislative powers between the Federation and the states (Länder). The basic rule is that, save where a power is specifically allocated to the Federation, any given subject matter falls within the legislative competence of the Länder. However, most of the law is federal today. It comprises more than 4,000 acts and statutory instruments. The Länder, pass laws mainly on such matters as the police, local government, schools and universities as well as the press, radio and television.
German law goes back partly to Roman law and partly to numerous legal sources in the German regions. In the 19th century a uniform system of private law was created for the first time. It applied to the entire German empire. The Civil Code and Commercial Code to this time preserve the liberal spirit of those times. Their underlying principle is freedom of contract.
I am going to compare the court structures and the procedures of these two very different legal systems.
To do so, I will describe in general the normal way from the arise of a difficulty between two parties in a civil matter to the judgement in Court
It would exceed this project to describe the procedures in all three jurisdictions in Britain. I will therefore describe the procedures & the court system of England and Wales only.
The case
plaintiff Bank ./. Guarantor defendant
We have a problem between our bank and a customer. He does not want or is not able to pay back his debt.
Say he is a wound-up limited company. We will not get any money out of that company but lucky as we are, we have a guarantor! The guarantor doesn't want to pay back the sum. He says something about 'no influence on the company' and 'houseman-guarantee'. However, you tried several times to solve the problem but finally he doesn't answer anymore. You have to start proceedings. The value of the case is £100,000.
Attempt to settle
Germany & Britain:
The first step is to attempt an early settlement, and the solicitor of each party will correspond on this. If this fails then the plaintiff[1] must consider going to court and whether or not an action would be successful.
Britain:
In this step it is required to send a letter before action to the defendant[2]. In it, the defendant is invited to comply with the claim within 7 days and is informed that court proceedings will be taken if he fails to do so. Nevertheless, in view of the cost of litigation, you will continue, even after service of the writ[3] and before trial , to seek a settlement. A number of cases are settled on the steps of the court itself on the day of the trial to avoid further costs. (Chart 1).
Germany:
A letter before action is not required, nevertheless most solicitors would do so. In Germany as well, a number of cases is settled before trial. However the number is not as high as in England (Chart 1).
Percentage of cases fought or settled
(Chart 1)
Alternatives to litigation
England and Wales:
There are two principal alternative methods in England and Wales by which contract disputes can be resolved:
* arbitration
* alternative dispute resolution (ADR)
Arbitration is the voluntary submission of disputes not to a court but to a person or tribunal chosen by the parties or designated by a third party whom they have nominated to make the appointment. The arbitration is a consensual process in which a person cannot be required to submit without his agreement. But once he has agreed, typically through an arbitration clause in his contract with the other party, he can be compelled to accept arbitration and any award against him is binding.
ADR is a process by which a third party, at the invitation of the contestant[4], is brought in with a view to the dispute being resolved amicably[5] and without any binding award. However, where the mediation results in an agreement this will be binding if so intended by the parties. ADR, being non-binding, has relatively little legal content.
We would usually first contact an ombudsman who's decision binds not the customer but the bank. We would stop the proceeding if he decides that we are wrong. However the ombudsman decides very seldom to the bank's disadvantage.
Germany:
There are no structured settlements in Germany and therefore no binding alternative methods by which contract disputes can be resolved. However, normally the judge will try to come to an early compromise acceptable to both parties.
The court structure
The first step to start a litigation is to decide where to litigate:
The British civil court system (First instances)
(Chart 2)
Generally, there are three different courts which may come in touch with civil cases in first instance:
1. Magistrates' Courts
2. County Courts
3. High Court
The Magistrates' Court's jurisdiction is local and almost entirely criminal. Although it has civil jurisdiction in matters such as recovery of some debts (e.g. business rates), granting of licences and so on. This court is therefore not suitable for our case.
The County Courts were set up in 1846 to deal with the bulk of civil actions at a local level speedily and cheaply. There are some 400 courts of this kind in England and Wales. The main features of the jurisdiction of the County Court are that
* it is entirely civil
* it is limited geographically (one of the parties must reside within the court's boundaries)
* financial limits[6] are placed on the value of the disputed claims.
The County Court system seems to be successful in resolving disputes in which simply starting an action is enough to achieve a resolution. Nearly two million actions are commenced each year but only a very small percentage go through to either judgement or arbitration. In the vast majority of cases, beginning proceedings was enough to achieve the plaintiff's objective.
A bank would not seek a County Court ruling to establish or clarify a point of law since at this level the rulings are not binding.
The High Court is the lowest of the so-called 'superior' courts which play an important role in establishing precedent.
The court is split into three divisions:
* The Queen's Bench Division
* The Chancery Division
* The Family Division
The Queen's Bench Division is the busiest division, trying the large number of cases about contracts and torts. It contains also
* the Admiralty Court which deals with actions to enforce claims for damages, loss of life or personal injury arising out of accidents at sea and
* the Commercial Court which deals with cases brought up by traders and merchants such as insurance claims etc..
The Chancery Division has important functions derived from earlier times, when it was concerned with all the more difficult branches of law. Its jurisdiction contains
* administration of estates of deceased persons,
* trusts,
* mortgages,
* sale of property,
* company, partnership and bankruptcy matters,
* taxation etc.
The Family Division deals with problems which are self-evident by its very name - all matrimonial matters, disputes and issues relating to the care and adoption of children.
Obviously a guarantee is a contract and the Queen's Bench Division is our way to solve our problem.
Overview of the court structure in England and Wales
(Chart 2)
The German court system (first instances)
(Chart 3)
In the German court system there are several challenges possible to the assumption of jurisdiction by a court:
1. that the matter brought before the court does not belong within that court's branch of jurisdiction ('richtiger Rechtsweg')
2. that the matter does not fall within the court's local jurisdiction ('örtliche Zuständigkeit')
3. that the court's subject matter jurisdiction ('sachliche Zuständigkeit') does not cover the matter brought before the court or finally,
4. the court's functional jurisdiction ('funktionelle Zuständigkeit') may be challenged.
It is easy to see that the system is extremely specialised, highly decentralised, and very complicated. So it is.
But we have to carry on and therefore I will only take a look at the civil courts.
The German civil courts (= branch of jurisdiction) are divided into
* ordinary courts (ordentliche Gerichte),
* labour courts (Arbeitsgerichte).
This is obviously not a labour matter so we take a look at the ordinary courts:
There are two courts of ordinary civil courts which come in touch with cases in first instance (= functional jurisdiction):
1. local court (Amtsgericht)
2. district court (Landgericht)
The Amtsgericht has jurisdiction where the value of the subject matter in dispute does not exceed DM10,000 (=£3,500). Although certain disputes fall within its competence regardless of their value. There are about 600 Amtsgerichte in Germany.
Civil cases that fall outside the jurisdiction of the Amtsgericht start in the Landgericht. There are about 90 Landgerichte in Germany each having, on average, about six Amtsgerichte in its circuit.
Our case exceeds the Amtsgericht's limit and has to be tried at the Landgericht (= subject matter jurisdiction) where the guarantor lives (= local jurisdiction)[7].Another Landgericht would not deal with our case.
Overview of the ordinary civil court structure in Germany
(chart 3)
The appellate courts
Say, we lost our case in first instance. How would we proceed?
The appellate court structure of England and Wales
(Chart 2)
Due to cost we could proceed by appealing to the Court of Appeal.
This court hears appeals from the High Court and the County Courts; it has only an appellate jurisdiction. It is staffed by judges known as the Lord Justices of Appeal, and normally three judges would hear an appeal although occasionally five have been known to do so. The court has the power to uphold or reverse the lower court's finding. At the pinnacle of the court system in Britain stands the House of Lords. It is the highest court in the UK. Usually five `Law Lords' will hear a case and a majority verdict from the five will either allow or dismiss an appeal in form of a speech. Not every case has the right of appeal in the House of Lords. Generally, permission is needed from the Court of Appeal
* to take the case further.
* Secondly, a point of law of general public importance must be at stake.
The latter usually means the construction of a statute. It is possible to appeal directly to the Lords without the case having first been appealed at the Court of Appeal. The procedure is known as `leapfrogging'. The same conditions for appeal apply. The Judicial Committee of the Privy Council (not included in Chart 2) is not a formal part of the British court structure. It is a tribunal which hears appeals from Commonwealth countries and from disciplinary hearings of some professional bodies. The Committee's decisions are rare but very influential because cases are usually heard by the Lord Chancellor and Lords of Appeal in Ordinary with the addition of senior Commonwealth judges, where appropriate. The House of Lords must, or a lower English court may, refer a question on European Union law to the European Court of Justice if an interpretation of that law is necessary before a decision can be reached. The power to refer to the lower level is discretionary. The English court may prefer to make its own interpretation.
The appellate court structure of Germany
(chart 3)
The appellate court of the Landgericht is either the Higher regional court (Oberlandesgericht or Kammergericht in Berlin) or the Federal Court of Justice (Bundesgerichtshof).
The Oberlandesgericht (OLG) (or Kammergericht in Berlin) is divided into senates, each consisting of three judges, one of whom has a higher rank and presides. There are twenty OLG's in Germany. They differ greatly in size, since many OLG's have thirty senates and other have only half a dozen. The OLG hears appeals in matter of facts ("Berufung").
The highest of the courts of ordinary jurisdiction is the Bundesgerichtshof (BGH). It sits in Karlsruhe and it consists of ten civil senates. Each senate consists of five federal judges, one of whom presides. An appeal to the BGH lies only if the OLG has given its consent, on the ground either that the case is one it believes to involve a matter of principle, or that its decision deviates from a decision of the BGH. It is only in cases where the appellant's interest in the appeal amounts to a least DM 40,000 (=£ 10,000) that the OLG's consent is not required, but even here the relevant senate of the BGH can decline to hear the appeal if it involves no issue of principle.[8] The BGH hears only appeals on questions of law ("Revision"). The last court to appeal in Germany is the Federal Court of Constitution (Bundesverfassungs-gericht). It is located in Karlsruhe and it consists of two senates. Each senate consists of eight Federal Constitution Judges. The Court will only hear an appeal, if the case involves a matter of constitution[9] and it also only hears appeals on question of law. Of course, the European Court of Justice is - as well as in Britain - the court of appeal in matters of European law.
The Procedures
The Pre-Trail
England & Wales
The Writ
The first step is to issue a writ. The original writ is drafted by bank's solicitor and filed in the court office where it is also sealed and returned to the plaintiff. The writ tells the defendant that the plaintiff has a claim against them. The plaintiff must send a copy of the writ within 4 months[10] to the defendant.
Costs: £70
The Statement of claim Usually the writ already contains the statement of claim[11]. The facts about the case must be given in sufficient detail to enable the defendant to prepare a defence. This statement is also called a pleading.
The Defence
The defendant must deliver a form of admission or defence in a county court within 14 days[12] of being served. His defence puts forward his version of the dispute. The defendant must be careful to plead a denial or non-admission[13] of every fact alleged in the statement of claim which he is not prepared to accept.
Cross-claims:
The defendant is able to make a cross-claim in the same proceedings. The counterclaim need not to be related to the subject-matter of the plaintiff's claim.
Close of pleadings & Discovery of documents
Within fourteen days of close of pleadings[14], each party must disclose all documents[15] which are in his possession[16] and produce them to the other party for inspection. It is not possible to add a pleading after the close of.
Advice on evidence
The next step is to ask the counsel to decide how to use the rule of procedure before trial to get the plaintiff into the best possible position and what evidence should be called at the trial. This is most important because cases are often won or lost by the way in which the evidence is prepared and presented.
Interrogatories
Interrogatories are numbered questions on issues of facts delivered by one party to the other, which must be answered on oath. They are used for the purpose of discovering the exact nature of the opponent's case where he has not made it clear in his pleadings, and of the facts upon which he relies in support of it.
The interrogatories may not, however, be directed to discovering what evidence the other party proposes to call in order to prove these facts.
Notice to produce a document
Each party's solicitor will send all his papers to counsel after an action has been set down for trial.
Every party has to make a notice if it wants to produce a document of the other party.
Germany:
The Writ (gerichtliches Mahnverfahren):
There is no need in Germany to start a proceeding with issuing a writ. However, this is the best way to receive an enforceable judgement, if the other party will not respond or counterclaim the writ.
The Statement of claim:
In order to commence the action the plaintiff must file a statement of claim with the court. The court will send a copy of the statement to the defendant.
Costs: DM2,200 + DM6 per copy (£780 + £2)
The plaintiff will usually give all facts of his point of view including the evidences to the court.
The Defence
The defendant will be asked to state within a strict time limit of 14 days whether he intends to respond to the claim. At the same time he will ask the defendant to serve his defence to the court within a further time limit of two weeks
Cross-claim
It is possible to raise a cross-claim against the claimant if it is connected with the subject matter of claim. If the connection is not established, the court may order that the two claims be separated and dismissed.
Pre-trial meetings & communications
There will be a number of isolated meetings and written communications between the parties and the judge; during the course of these meetings evidence will be introduced, testimony[17] given, motions and rulings on procedure made, and areas of agreement and disagreement gradually marked out.
The judge will finally summon the parties to attend the trial.
Major Differences:
1. Barristers interact between solicitors and the judge in the superior courts. Solicitors have only the right of audience in the magistrates' courts and the county courts. However the first point of contact for any member of the public seeking legal services will normally be the solicitor. It is normally his exclusive right to instruct the barristers in cases before the English courts.
2. The pleadings are quite specified in England and Wales and all issues have to be defined at the beginning of the case.
3. It is possible to introduce new motions, causes of action and issues as the case proceeds in Germany.
4. If unsuspected facts do emerge or unforeseen allegations are made the German attorney will always be given an opportunity to search for and present additional proof.
5. English lawyers are equipped with the power of discovery. This is an effective means in England and Wales, backed by the power of the court, for tracking down and finding out the facts that may be relevant for the case.
6. The German attorney is not especially active in pursuing information on his own. Only in special circumstances is it thought advisable to question witnesses out of court: if a witness has previously discussed the case with counsel, a German judge might be very suspicious of his testimony.
7. Common civil procedure lays much stress on having everything done by word of mouth. Every document will be described carefully.
The Trial
England and Wales:
The proceedings in a trial are conducted in a formal matter and tend to be very concentrated. The plaintiff will have to present his evidences first, and any witnesses may be cross-examined by the defence, or questioned by the judge. The plaintiff's lawyer can re-examine any of his witnesses. Next it is on the turn of the defence to present its evidence. Legal argument may then take place, followed by a summing up of each party's case. The judge will usually deliver judgement at the end of the trial, but may reserve judgement.
Germany:
The court will draw up its report on the present state of the dispute. He will do so on the basis of the parties' written pleadings and its own preliminary review. To the extent that any relevant facts remain contentious, the court will order that evidence is taken. Where appropriate, the court will advise the parties to amend or supplement theirs pleadings and applications for relief. Oral hearing are prepared by written pleadings which contain the facts and a presentation of evidence; they may also contain points of law[18]. As soon as the matter is ready for the court to give its decision, the court will pronounce judgement either at the end of a hearing or at a later date to be announced.
Major differences
1. If the German trial raises a new point orally, the attorney often asks the court to give him a certain period of time to put his answer in writing.
2. A Common lawyer has the right to drum up as many witnesses as he chooses. The English judge can not avoid the lawyer maximising the number of witnesses. In contrary, a German judge will do his very best to minimise the number of factual issues that can only be resolved by hearing witnesses to save time.
3. Common civil procedure has highly complicated rules regarding the exclusion of various kinds of evidence. These rules were intended to prevent the jury being misled by untrustworthy testimony. However, the German court system never knew juries in civil cases.
4. The judge is seen in common law as a referee. Therefore a German judge operates in a very dominant and vocal manner. This is because the court is supposed to know and apply the law without waiting for counsel to deploy it and, more importantly, the court has the duty to clarify the issues and help the parties to develop their respective positions fully. Accordingly, the court asks questions and makes suggestions with the aim of inducing the parties to improve, modify, or amplify their allegations. The judge will esp. do so if a party is appearing in person, or is represented by inexperienced or incompetent counsel, and the judge feels that he may be put at a disadvantage by oversight, inadvertence, or a clear misapprehension of the applicable law, the judge may make his suggestions in order to reach the right result
5. The way in which a witness is interrogated indicates an inquisitorial nature of German civil procedure. The court asks name, age, occupation, address, admonishes him to tell the truth, invites him to recount what he knows of the matter without undue interruption, dictates periodic summaries to the clerk and questions the witness so as to test, clarify, and amplify what he has said.
6. Experts are not witnesses at all in Germany. They are usually appointed by the court, act under the court's instructions, and owe the court a duty of loyalty and impartiality. Accordingly, in a German court one rarely sees head-on clashes between experts called by the parties and paid to be partial, subjected to fierce examination and cross-examination by attorneys who have just acquired a smattering of their expertise for the purpose.
Legal costs & statistics
England & Wales
The unsuccessful party pays its costs and the costs of the successful party.
These comprise:
* the court fees
* solicitor's fees
* counsel's fees[19] and
* witness fees.
A party must therefore bear the litigation expenses of that part of the case as to which he turns out to be the loser. This applies, however, only to expenses that a reasonable litigant would have incurred under the circumstances. The Costs of the trial are in the discretion of the judge, but in general the costs follow the event. They therefore depend on how long the proceedings take, how complex they are or how much work they require of the court. So the costs of an action in England can be substantial, sometimes exceeding the value of the case in the action. However the court fees to begin a proceeding are very cheap. GBP 70, regardless of size of the claim, is the fee for the High court[20].
Germany
In a fully contested case three units will be payable, the amount of the unit being fixed by the statute in relation to the amount involved in the litigation. Court costs, unlike those in England, are by no means negligible. They are fixed by statute, and consist of one or more `basic unit'. The number of units payable depends on the number of stages the proceedings have run to, but not on how long the proceedings take or how complex they are or how much work they require of the court. According to the Code of Civil Procedure (Zivilprozeßordnung), the principle that `the loser pays' applies - as well as in Britain - to attorney's fees and court costs. However in most cases the costs are covered by insurance.The table gives an idea of the litigation expenses payable by the loser in a fully contested case in which evidence was taken:
|
|
Amount in Controversy |
||
|
|
DM 500 |
DM 5,000 |
DM 50,000 |
|
Court costs (3 units) |
DM 69 |
DM 348 |
DM 1,386 |
|
Attorney's fees: |
DM 200 |
DM 920 |
DM 4,080 |
|
Attorney's fees of opponent: |
DM 200 |
DM 920 |
DM 4,080 |
|
Evidents costs (no experts): |
DM 100 |
DM 225 |
DM 625 |
|
Total expenses |
DM 569 |
DM 2,413 |
DM 10,171 |
|
in percent |
114 % |
48 % |
20 % |
The German system is therefore more reliable or accountable for each party.
Cost of litigation in England and Germany
(Chart 4)
Duration of the proceedings
in months
(chart 5)
In fact, there are very market differences in civil court procedures between England and Germany. I think it is disappointing that the European Union failed to harmonise these procedures and currently prevents all of its consumers from benefiting equally under its laws. It is not the case that everything in Europe needs to be harmonised or standardised but it is important to differentiate between important and trivial matters. We do not need Euro-juices, Euro-bananas, Euro-motorbikes or Euro-pizzas. On the contrary, I think we need different products of each nation or region. But law is not a product to sell . Law is a means for an objective. It is therefore to serve the daily business and to help to resolve problems. Among the first things a client wants to know before embarking upon or defending litigation are:
1. How long will the litigation take?
2. How much will it cost?
About 95 per cent of all cases in England are solved by an early settlement. This is quite comprehensible if you consider the costs and the duration of a litigation in England. However, also the German legal system is often criticised for long proceedings and on the other hand the German system is discouraging early settlements with its substantial court fees on commencement of and during the proceedings. In both countries there is provision for the losing party to pay the costs of the proceeding. There is a is strong call for a `no-win-no-fee' policy in England. This reflects a genuine concern that, at present, undertaking cases is - compared to Germany - a high risk in costs. The theory is that lawyers charge nothing if they lost but increase their normal fees by up to 100 per cent if they won a case. Finally it is a good question for a community to ask how much of their costs are recovered by fees. About 83 per cent of the costs of the civil court are recovered in England and Wales. I was not able to receive sufficient information about Germany, but I thing it is fair to say that it won't be that much. The figures I received of a court in Berlin estimates it between 50 and 60 per cent. The influence of accountancy has just begun to grow in German administrations and is not as good as in England, yet.
References
Nigel Forster German Legal System and Laws Blackstone Press Ltd. London, 1993
A.K.R. Kiralfy The English Legal System Sweet & Maxwell London, 1984
Norbert Horn German Private and Commercial Law
Hein Kotz & An Introduction
Hans G. Leser Claredon Press Oxford, 1982
Sheridan & Cameron EC Legal Systems An introductory guide Butlerworth & Co (Publishers) Ltd. London, Edinburgh, 1992
Denis Keenan Business Law
Sarah Richers Second Edition Pitman Publishing London, 1990
David McIntosh & Civil Procedures in EC Countries
Marjorie Holmes of An industrial report
Davies Arnold Cooper Lloyds of London Press Ltd. London, 1991
Roy Goode Commercial Law New Edition Penguin Books London, 1995
A. Kader "Business & Commercial Law made simple 3rd edition"
K. Hoyle Made Simple Books
G. Whitehead Oxford, 1991
S.H. Bailey The Modern English Legal System
M.J. Gunn Sweet & Maxwell London, 1991
Lord Chancellor's Department Judicial Statistics England & Wales 1995 HSMO London, 1996 Charter for Court Users London, 1996 LCD Strategic Plan 1996/97-1998/99 Internet: http://www.open.gov.uk/lcd/strtplan
Bundesgerichtshof Internet: http://www.bgh.de
Smith & Keenan's English Law Pitman Publishing London, 1995
Frances Gibb "Scott urges more `no win, no fee' litigation" The Times Saturday May 17 1997, London page 9
[1] person who brings an action at law (in our case the bank)
[2] person against whom a legal action is brought (in our case the guarantor)
[3] written order issued in your name to pay the guarantees sum
[4] one who is arguing
[5] peaceable, done the friendly way
[6] - claims for damages in respect of personal injuries and death must be commenced in a county court unless the claim is for £50,000 or more
- other actions of which the value is less than £25,000 will be tried at the county court
- claims between £25,000 and £50,000 are allocated between the High Court and the County Court in accordance with other criteria
- an action over £50,000 will be tried at the High Court unless other criteria
[7] This is right in the most cases. However, if the guarantor was a 'Kaufmann' accordingly the German Commercial Code (HGB) at the day he signed the contract the case could be tried at the Landgericht where the bank has its 'home'.
[8] The Federal Court of Constitution declared that the `decline to hear the appeal' is consistent with the constitution. The Court argues that this rule must be interpreted to mean that a senate may refuse to hear an appeal involving no matter of principle only if at the end of the day the appeal has no chance of success.
[9] These matters are numbered in the law of the Federal Court of Constitution (Bundesverfassungsgerichtsgesetz) and the Court will only hear a case if it involves one of these matters!
[10] or 6 months outside England and Wales
[11] Klageschrift
[12] outside England and Wales: 21 days
[13] A denial implies that the alleged fact is disputed; a non-admission indicates that while the party pleading it is not necessarily disputing the fact alleged he is putting the other party to proof of that fact, so that it cannot be taken to be admitted. Both a denial and a non-admission constitute a traverse so as to put the allegation in issue.
[14] these are the statement of claim, the defence, the counterclaim and all other claims
[15] called: "Discovery of documents"
[16] ownership
[17] declaration, testifying that something is true
[18] However, there is no duty on the parties to plead applicable to law, let alone to bring to the court's attention to the applicable law during the oral hearing.
[19] Barrister's fees
[20] ... but fees in the lower courts vary depending on the size of claim between GBP 7 and GBP 43.