B2B Debt Collection and Litigation Strategy in Germany
Litigants from Britain will find themselves in a very different legal and cultural environment when they have to chase a debt from their German business partners. Many of the legal tools used in England do not exist in Germany. For instance, the German Civil Procedure Rules (Zivilprozessordnung) do not know:
- a pre-action protocol (a debtor can be immediately sued without any prior warning)
- any disclosure obligations, much less USA style discovery
- barristers (German lawyers, called Rechtsanwälte, have both roles: solicitor and barrister)
- proofing of witnesses or experts, much less a written witness statement
- cross examinations (witnesses are questioned by the judge)
- the German equivalent of a Part 36 offer
- etc
Matters are even worse when you are the one that is being sued in Germany, because English company directors and their solicitors will wait for a formal Pre-Action Protocol letter from the German opponent. Well, they can wait until the cows come home, since there is no such Pre-Action Protocol requirement under German Civil Procedure Rules (CPR). Instead, civil proceedings can be – and often are – issued within just a few days if the claimant feels like it. If this happens, the UK defendant has immediately fallen behind and everything becomes extremely hectic because court deadlines must now be met.
As you can see, a litigant from England may show up for German civil litigation all set to play snooker while the German defendant and their German legal counsel will play 8 ball pool.
Thus, if you are faced with a civil lawsuit in Germany, you better be prepared for an entirely different set of rules as well as litigation strategy. My short guide (download below) explains the basics of German CPR.
Recover a debt from a German business partner
Post Brexit, a UK based creditor can no longer make a European Payment Order or use the European Small Claims procedure to recover money they are owed by someone in an EU country.
Unless the contract stipulates otherwise, chances are that place of jurisdiction is the business seat of the defendant (debtor), i.e the German Landgericht (High Court) in the city nearest to said company seat of the defendant. Unlike in England & Wales, where most high stakes business lawsuits are dealt with in London, because the Commercial Court is where the specialist judges are, Germany has no less than 638 county courts and 115 High Courts. So, finding the correct court is already the first challenge of bringing a civil action in Germany, because the lawsuit will only be accepted by the court which has jurisdiction (örtliche Zuständigkeit).
The Expert on German and English Civil procedure
German business litigation expert Bernhard Schmeilzl specialises in UK-German disputes since 2001. He is not only a very experienced German trial lawyer but he also knows the English side of things because he has written the only German language textbook on civil litigation in England and Wales (“Der Zivilprozess in England”) published by the renowned BECK Verlag.
He is the editor of the German language law blog www.EnglischesRecht.de, which explains matters of English law to a German speaking audience.
His in depth knowledge of both legal systems and their respective civil procedure rules makes his advice so valuable for litigants from the UK. Bernhard Schmeilzl immediately eliminates any misconceptions and unrealistic expectations the UK party may have, for example about the tool of disclosure, which simply does not exist under German law.
Guide to Civil Litigation in Germany
Download the free English language brochure on how to conduct a civil lawsuit in Germany here:
GrafLegal Guide to German Civil LItigation (UK version)
Header image licensed from Dreamtime.com