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Failure to get Translation Gets Foreign Case Dismissed

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On May 8, 2019, the Higher Regional Court of Frankfurt (“HRCF”) in Germany held that although a translation of the statement of claim is not required under the law, a plaintiff is responsible for doing so if he or she opts for a translation under Regulation (EC) No. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the “Regulation”). If the process of service of the statement of claim (“statement”) is delayed for lack of translation, the plaintiff bears the legal risk under applicable German law that the time limitations on filing a suit are not tolled because the statement was served months after the filing.

 

The Case

 

The lawsuit was filed by a plaintiff-insolvency administrator against a defendant that was domiciled in France. According to applicable law, the deadline to file a claim expired on December 31, 2015. Plaintiff initiated the claim on December 15, 2015 at Darmstadt Regional Court (“DRC”) without a translation of the statement of the claim. Instead, the plaintiff asked the DRC to obtain a translation and paid the fee in advance to the court. DRC had difficulty finding a translator and, as a result, only received the translated statement of claim in October of 2016. The translated statement of claim was served on the defendant in December of 2016. Not surprisingly, the defendant alleged the statute of limitations had passed.

 

Court Decisions

 

The DRC ruled in plaintiff’s favor, allowing the case to proceed, and cited Section 167 of the German Code of Civil Procedure (“ZPO”). UnderSection 167, the deadline to serve a statement of claim is suspended with its filing if it is served “in the near future” and the party seeking service did not cause the delay. The DRC found that the delay in the service of the statement of claim was not due to the plaintiff but, rather, the court’s slow handling of the translation. Defendant appealed.

 

The HRCF reversed the DRC’s decision and dismissed the lawsuit, determining it was statute-barred. The HRCF held that the plaintiff did not do all that was reasonably required to ensure service was effectuated “in the near future” under Section 167 of the ZPO. The court did not address the question of whether service of a statement of claim a year after its filing could be construed as “in the near future.” The HRCF held that under Article 5(1) of the Regulation, the plaintiff is not required to provide a translation of the statement of claim for the defendant. That being said, Article 8(1) of the Regulation allows a defendant to refuse service if he or she does not understand the content of the document or it is written in another language than that of the receiving member state. If a defendant refuses to accept, then the document must be served with a translation. Notably, the relevant service date for tolling a statute of limitation under Article 8(3) of the Regulation is the initial service attempt.

 

For more information on the case, visit Baker McKenzie’s Global Litigation News.

For international service of process; visit Ancillary Legal.