No reimbursement of travel costs for lawyers due to unloading appointments if the beA mailbox is orphaned

“Trust is good, control is better”

The 15th Civil Chamber of the Munich I Regional Court, which is responsible for official liability law, has dismissed the lawsuit for reimbursement of a lawyer’s travel expenses amounting to around 1,000 euros for a date canceled by the court the day before (ref. 15 O 7223/23).

The plaintiff had commissioned the Lübeck lawyer for a conciliation hearing before the Munich Labor Court. The date was set for January 12, 2022 at 3:15 p.m.

The conciliation date was canceled on January 11, 2022 because the lawsuit was not effectively served. The cancellation of the appointment was delivered to the plaintiff’s lawyer in his electronic mailbox (beA) on January 11, 2022 at 10:39 a.m. The lawyer was not informed by telephone about the cancellation of the appointment.

The lawyer claimed to have set off from Lübeck in his car at 9:00 a.m. on January 11, 2022. It was not possible to check the electronic mailbox while driving because no one was in his office and only he had access to the electronic mailbox. It was not reasonable for him to travel on the day of the hearing because of the distance. He only found out about the unloading after arriving in Türkenfeld, where he had planned to spend the night before the court date.

The 15th Civil Chamber denied any breach of official duty on the part of the employees of the Munich Labor Court as well as any causal damage to the plaintiff.

Essentially, the court states in its reasons for the judgment that the electronic mailbox can also be accessed on mobile devices. The labor court employees therefore did not have to call the lawyer because they could trust that the unloading would reach him in time, according to the court.

The Chamber states:

“Even though the distance from Lübeck to Munich runs through almost the entire republic, it was already unreasonable to assume that the plaintiff’s representative would leave at 9 a.m. the day before for an appointment at 3:15 p.m. It would have been obvious that the plaintiff’s representative would choose a flight from nearby Hamburg to Munich on the day of the appointment. Alternatively, it would have been expected that he would have chosen a train connection from Lübeck to Munich, which would have meant a departure around 7 a.m. on the day of the appointment (the court had pointed this out). Even if he had used his own car, it would not have been expected that the plaintiff’s representative would leave on the morning of the previous day. Likewise, it was not foreseeable to the office that the plaintiff’s representative’s office was completely deserted during this time and that neither a member of the office nor the lawyer himself (via mobile access) would be aware of incoming beA messages.”

From this the court draws the conclusion that “in this case, the plaintiff’s representative was definitely held because of his exceptionally early departure, which no one had to expect [war]either to organize his office in such a way that incoming messages are immediately acknowledged there, or he should have technically ensured that he himself receives prompt notification of incoming messages via beA.

The plaintiff correctly states that he is generally not obliged to ask before arrival whether the appointment is taking place. However, the court was convinced that there were special circumstances in the present case: “It was known to him at the latest since the labor court’s notification on January 5, 2022 that there were considerable doubts about the effective delivery of the statement of claim and the summons to an appointment and that it was therefore obvious that the appointment should be canceled . The plaintiff’s representative failed to inform himself about this.”

Therefore, the 15th Civil Chamber came to the conclusion that the lawyer was responsible for the travel costs himself. The chamber is therefore convinced that there was no breach of official duty.

The judgment of October 10, 2023 is not yet legally binding.

Source: Bavarian State Ministry of Justice – Munich Regional Court I