Facts
This judgment dealt with the question of how to allocate court costs in the procedure of precautionary taking of evidence under Art. 158 CPC if the respondent requests the dismissal of the requested taking of evidence and is unsuccessful with this request. The further question was whether the respondent represented by counsel in such a case is entitled to party compensation.
The Federal Supreme Court had to decide whether the lower court had proceeded correctly in the allocation of costs and the issue of party compensation.
Considerations
The Federal Supreme Court concluded that in the procedure of precautionary taking of evidence, there is no losing party within the meaning of Art. 106 CPC. Therefore, the principle of the losing party cannot be applied here.
Instead, it must be taken into account that the procedure of precautionary taking of evidence serves the interest of the requesting party. Therefore, it is appropriate to impose the court costs on this party, subject to a possible reallocation in the main proceedings.
Furthermore, the respondent is entitled to party compensation, as they are involuntarily…