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The BGH has once again decided on a deadline problem, or rather: on missing a deadline. The plaintiff or her legal representative had missed the deadline to give reasons for appeal. Compensation for material and immaterial damage from a sports accident had been sued. The LG dismissed the action with a default judgment dated May 18, 2018. With the judgment of August 14, 2018, it upheld the default judgment. The plaintiff lodged an appeal against this ruling, which was served on August 27, 2018, by her legal representative. The deadline for the justification of the appeal expired on Monday, October 29, 2018. In a brief dated November 22, 2018, the plaintiff applied for reinstatement in its previous status due to failure to meet the deadline to justify the appeal.
She stated that her legal representative was admitted to inpatient treatment in a hospital on October 27, 2018 with acute pain after a fall. Following this stay, she was transferred to another hospital and treated as an inpatient up to and including 07.11.2018. She was back in the office for the first time on November 20, 2018. She would have delegated the deadline control to her legal assistant, who had always worked carefully until then. It was only on November 22, 2018 that he noticed in the course of the file processing that the deadline for the justification of the appeal had not been entered in the deadline calendar. The employee has been trained and reliable and has kept the calendar carefully since she was hired, as had been shown by regular checks by the legal representative.
In a resolution dated December 14, 2018, the KG pointed out that the request for reinstatement could not be granted because the plaintiff had not credibly demonstrated that, through no fault of its own, it was prevented from observing the deadline for the reasons for the appeal. The application does not reveal why your legal representative did not check the correct notation of the time limit for the appeal in connection with the submission of the file for the purpose of producing the appeal. The plaintiff justified her appeal with a brief received on December 17, 2018. In a pleading dated January 23, 2019, the plaintiff stated that her legal representative recorded deadlines such as the deadline for appeal in her own calendar. She trusted that her legal assistant had also noted the deadline in the deadline calendar. The legal representative had intended to prepare the statement of grounds on the weekend of October 27th / 28th, 2018 and to forward it to the KG within the deadline that expired on Monday, October 29th, 2018. In the night of October 25th to October 26th, 2018, she suffered a broken fibula in a fall, which is why it was not possible for her to appear in the office on October 26th, 2018.
The KG rejected the application for re-establishment. The applicant appeals against this decision. It was unsuccessful:
“The legal complaint is admissible (§ 574 Paragraph 1 Clause 1 No. 1 in conjunction with Section 522 Paragraph 1 sentence 4, § 238 Para. 2 sentence 1 ZPO). However, it is not permitted because the requirements of § 574 Paragraph 2 ZPO are not fulfilled. Contrary to the view of the legal complaint, a decision of the legal complaint court is not necessary to ensure uniform jurisdiction. In particular, the contested decision does not infringe the plaintiff’s right to be heard (Art. 103 Para. 1 GG) still in its constitutionally guaranteed right to effective legal protection (Art. 2 Paragraph 1 GG in conjunction with the rule of law). The applicant is not given access to an instance granted in the rules of procedure in an unreasonable, factual reasons no longer justifiable more difficult.
1. The court of appeal stated that the plaintiff had not substantiated any facts according to which the failure of the time limit for the appeal was not due to the fault of her legal representative. Insofar as the plaintiff asserts that her legal representative had delegated the deadline control to her legal clerk, who had always worked carefully until then, there was no presentation of why the legal representative had not checked the correct notation of the deadline for the appeal in connection with the submission of the file for the purpose of producing the appeal. The plaintiff’s further statements in her brief of January 23, 2019 are not considered because they were not submitted within the one-month application period (§ 234 Paragraph 1 sentence 2, § 236 Para. 2 sentence 1 ZPO). However, the lecture was also not suitable to excuse the failure to meet the deadline for the appeal. The plaintiff had not shown that her legal representative was not able to call in a representative or to request an extension of the deadline. It is incomprehensible why the legal representative was prevented from reaching a representative on Friday, October 26, 2018, who could have submitted an application for an extension of the deadline for her. Insofar as the plaintiff, by pointing out that her legal representative could not appear in the office on October 26, 2018, possibly implicitly wanted to express that her legal representative was therefore also unable to notice the impending expiry of the deadline, she overlooked the fact that it was her duty of care Heard attorneys ask her clerk to review the deadlines she noted.
2. These statements stand up to legal scrutiny. The appellate court rightly denied the plaintiff the requested reinstatement in the previous status because the failure to meet the deadline to justify the appeal is due to the fault of her legal representative, which she has in accordance with § 85 Para. 2 ZPO is attributable.
a) The claimant has neither demonstrated nor credibly demonstrated that her legal representative has ensured that deadlines for appeal are not missed by properly organizing the deadline control in her office.
aa) The duty of care in deadline matters requires a lawyer to do everything reasonable to ensure that deadlines for appeal are met. He can entrust the calculation and noting of deadlines to a well-trained, reliable and carefully monitored office worker. If he does this, however, he must take suitable organizational measures to ensure that the deadlines are reliably recorded and controlled. The precautions required to enable cross-checking within the framework of the deadline control include, in particular, that the deadlines for appeal are noted in the reference file and that the reference file shows, by means of corresponding completion notes or in some other way, that the deadlines have been entered in all the deadline calendars. If the matter is presented to the lawyer for processing in connection with a time-bound procedural act, he is responsible for checking compliance with his instructions for calculating and noting current deadlines for appeal, including entering them in the deadline calendar, whereby he basically restricts himself to checking the notes in the reference file may. This legal obligation to examine also exists if the reference file has not been submitted for processing at the same time, so that in these cases the lawyer must arrange for the reference file to be submitted for the deadline control (see Senate decision of 23 June 2020 – VI ZB 63/19, zVb; BGH, decision of July 9, 2014 – XII ZB 709/13, NJW 2014, 3102 Marg. 12 mwN).
bb) The legal representative of the plaintiff did not fulfill the duties of care required by this case law. If, when submitting the reference file for the production of the appeal letter received by the court on September 27, 2018, she had checked whether the deadline for the appeal had been correctly noted, she should have noticed that the deadline for the reason for the appeal had not been entered.
b) Failure to comply with the duties of care described under a) is, contrary to the view of the legal complaint, meaningless because the plaintiff’s legal representative – as the latter asserted in a brief of January 23, 2019 – noted and monitored the deadlines himself in her calendar. It can be left open whether this will only take place after the re-establishment period (§ 236 Paragraph 2 Clause 1 ZPO) can be considered in the process. Because it cannot be inferred from him that the plaintiff’s attorney is not to blame for missing the deadline to justify the appeal.
aa) According to the established case law of the Federal Court of Justice, a lawyer must take general foresighted precautions to ensure that what is necessary to meet deadlines is undertaken even if he fails unexpectedly; he must give his staff the necessary general instructions for such a case. In addition, if the lawyer falls unexpectedly ill, he must do everything possible and reasonable for him in the specific situation to meet the deadline. The highest court rulings therefore provide for differentiated requirements on the one hand for general predictive precautions in the event of illness and on the other hand for specific measures in the event of illness that has already occurred. The general precautions and the specific measures in the event of hindrance should interlock (see Senate resolution of April 16, 2019 – VI ZB 44/18, NJW-RR 2019, 1207 Marg. 11; BGH, decision of May 28, 2020 – IX ZB 8/18, zVb, Rn. 10 ff. With further references).
bb) The plaintiff has not demonstrated or credibly demonstrated that her legal representative has complied with these due diligence requirements. …. ”
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