Independent evidence procedure

Independent proceedings for the taking of evidence are court proceedings for the taking of evidence (§§ 485 ZPO ff.). Here, an anticipated taking of evidence by the court takes place without a separate action (for performance/subsequent performance/removal of defects or payment/advance/damages) being pending before the court beforehand. However, the court with jurisdiction for the taking of evidence is always the court where any main action would have to be brought.

Independent proceedings for the taking of evidence are predominantly used in cases under construction law and contracts for work and services. The subject of the proceedings is usually the allegedly defective performance of the contractor. Although no legal dispute is pending yet, an application can be made to the court for a written expert opinion on the condition of an object, the cause of a defect/damage and or the expense of remedying the defect/damage by a court-appointed expert.

• dispute-settling function
  Independent proceeding for the taking of evidence can contribute to an amicable settlement if parties are in dispute about facts that are essentially unresolved and that only an expert can reliably determine (e.g. defect - yes/no?, How do you remedy the defect? And how much does it cost to remedy the defect?) The parties can first obtain a court expert opinion on the unsettled facts and do not need to conduct a time-consuming lawsuit to achieve this.

• limitation-inhibiting function
  Upon service of the application for independent evidence proceeding, the limitation period for the claims is suspended (section 204 (1) no. 7 BGB).

• Process-preparatory function
  As an applicant, however, you can also initiate independent proceeding for the taking of evidence in order to use the expert opinion to find out facts that you are not aware of due to a lack of expertise and on which the prospects of litigation depend. This is especially the case with warranty claims and disputes about the causes and consequences of damage. Often, without an expert's assessment, no damage could be claimed in court, as it has to be quantified down to the eurocent.

An application for independent proceeding for the taking of evidence must be filed with the court. The application should be made by a lawyer. We are available to you at any time and regularly handle independent evidence proceedings in Düsseldorf, but also nationwide.

As a defendant in an evidentiary proceeding, you also have the opportunity to directly influence the evidentiary proceedings by means of your own motions or supplementary questions, or to expand the subject of the evidence. Furthermore, it is also a question of being well positioned for a possible subsequent trial. It would also have to be decided whether to involve third parties in the proceedings. This is usually done by means of a so-called notice of dispute. On the defendant's side, for example, it often makes sense as a construction company to involve the subcontractor commissioned with the execution of the defective work in the proceedings by way of a notice of dispute. Such a notice of dispute basically binds the third party to the results of the determination of evidence, it can actively intervene in the proceedings and the limitation period between the defendant and the third party, the so-called recipient of the notice of dispute, is also suspended. Here, too, we will be happy to advise you.

Even as a party to the dispute, a defence in the proceedings should be examined by a lawyer Otherwise, the circumstances established in the evidentiary proceedings would also be binding on you (with so-called intervention effect).

For court costs, a single (1.0) fee according to NR. 1610 KV of the Court Costs Act (GKG) is due. For contentious proceedings at first instance, a triple (3.0) fee according to Nos. 1210, 1220, 1230 of Annex 1 to the GKG is otherwise due.

The costs of the court-appointed expert depend on the type and scope of the taking of evidence. The costs are settled according to the Judicial Remuneration and Compensation Act (Justizvergütungs- und -entschädigungsgesetz).

For the lawyer's fees, please contact us and we will provide you with transparent information.