Admissibility of additional factual allegations and requests for evidence after the close of the exchange of written submissions

Facts

This judgment dealt with the question of whether additional factual allegations and requests for evidence are still admissible after the completion of the double exchange of written submissions and before a subsequent instruction hearing. The appellant A. had made further submissions after the second exchange of written submissions, but before the instruction hearing, which the Cantonal Court had considered to be late.

The Federal Court had to assess whether the lower court was right to assume a close of the file after the second exchange of written submissions and, consequently, whether the additional submissions of the appellant were only admissible under the requirements of Art. 229 para. 1 CPC.

Considerations

The Federal Court stated that according to the prevailing legal doctrine, the close of the file actually occurs with the completion of the second exchange of written submissions, regardless of whether a subsequent instruction hearing takes place. The parties would thus have two opportunities in principle to submit facts and evidence without restriction - either within the framework of the double exchange of written submissions or a simple exchange of written submissions with a subsequent instruction hearing.

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