Facts
The case concerns a complainant who wishes to take action against the liability insurance of the party responsible for the traffic accident after an accident. In order to better assess her chances of success in the proceedings, she applied to the Solothurn-Lebern Judicial Office for the conduct of a precautionary taking of evidence pursuant to Art. 158 para. 1 lit. b CPC. Specifically, she demanded the preparation of a multidisciplinary medical expert opinion to determine her health complaints, the resulting incapacity for work and restrictions in household management, as well as the causality of the complaints to the accident event.
The District Court and the High Court of the Canton of Solothurn dismissed the request. Thereupon, the complainant filed a civil law appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court considers the complainant's complaint to be justified. It states that the interest in a precautionary taking of evidence depends on the interest in enforcing a claim to be proven thereby. In the present case, a legitimate interest in the precautionary taking of evidence cannot be arbitrarily denied if - as the lower instance itself states - the requested multidisciplinary expert opinion "will probably be indispensable" in any potential liability lawsuit.
The lower instance overlooks that the precautionary taking of evidence under Art. 158 para. 1 lit. b CPC is intended not only to allow a vague assessment of the chances of success in the proceedings, but to aim for a proper…