Appeal in civil matters against an interlocutory decision concerning an advance on costs or security for costs (Art. 93 para. 1 let. a LTF)

Facts

On September 28, 2015, X. SA filed a liability action against A. AG, B., C. and D. before the Civil Court of the District of Sarine. On October 2, 2015, the President of the Court set a deadline for X. SA to make an advance payment of the presumed court costs, fixed at CHF 475,000.

On October 15, 2015, X. SA appealed against this decision in order to obtain a reduction of the advance on costs, concluding that it should not exceed CHF 95,000. On December 3, 2015, the Moderation Court of the Cantonal Court of the Canton of Fribourg dismissed the appeal.

On January 11, 2016, X. SA filed a civil appeal to the Federal Tribunal, concluding to the reform of the aforementioned judgment in the sense of a reduction of the advance on costs.

Considerations

The Federal Tribunal first examined the admissibility of the appeal. It considered that the order of October 2, 2015 imposing an advance on costs on X. SA and the judgment of the Moderation Court of December 3, 2015 rejecting the appeal against this order constitute interlocutory decisions within the meaning of Art. 93 para. 1 let. a LTF.

According to case law, the appeal is only admissible if the contested decision can cause irreparable harm to the appellant. The Federal Tribunal specified that the irreparable harm does not lie in the more or less high amount of the advance, but only in the fact that the party who does not have the necessary financial means to pay it and who cannot claim…