Conducting a trial within the bounds of the Code of Civil Procedure is the main task of the courts, alongside reaching a judgement. However, the lawyer may need to be even more familiar with the rules of the game, as a recently published judgement shows (BGer 4A_409/2024, judgement of 9 September2024).

The ZPO stipulates that the plaintiff must file an action with the competent court within three months of receiving the authorisation to file an action following the conciliation hearing (Art. 209 para. 4 ZPO). A lawyer submitted a claim to the Regional Court of Bern-Mittelland without substantiation or evidence. At the same time, he submitted a ‘request for an extension of the deadline for filing the statement of grounds’ for 20 days. However, the ZPO clearly stipulates that in ordinary proceedings, which applied in this case, the (first) statement of claim must already be substantiated (Art. 221 ZPO). Despite this obviously inadmissible division of the action into two parts, the court granted the request to extend the deadline and set a deadline of 20 days for the subsequent statement of grounds. 

The plaintiff or her lawyer subsequently submitted the substantiated claim within the extended deadline. However, the three-month period for granting the claim had already expired at this point. The defendant therefore (rightly) took the view that the (substantiated) claim had been filed too late.The regional court also recognised this and therefore, despite initially granting an extension of the deadline due to the delay, did not accept the claim.

The judgement contained an instruction on legal remedies, stating that an appeal could be lodged within 30 days. However, the lawyer probably no longer trusted the court.He would have done better this time. So he lodged a complaint with the High Court of the Canton of Bern. In fact, however, the appeal would have been the correct legal remedy here. The High Court therefore did not hear the complaint. The lawyer finally tried to appeal to the Federal Supreme Court, but the court confirmed the lower court’s decision that the wrong legal remedy should not be dealt with.

In the end, it was the plaintiff who suffered most from the gross errors of the court and the lawyer. She had to pay the courts and the defendant a total of more than CHF 10,000 without a judge ever dealing with the substance of her claim.