Increase of the advance on costs in an unquantified claim after correction of the amount in dispute

Facts

The respondent was managing director of [A. AG] , which is in liquidation and appears as [A. AG] in liquidation (plaintiff, appellant).

On 27 April 2016 the plaintiff filed an action with the Cantonal Court of Zug. It demanded that the defendant, as trustee, render an account, in particular concerning the shares in [C. GmbH] with its seat in Italy held in trust, and the payment of an amount still to be quantified, at least EUR 100'000 plus interest. It was an unquantified claim with a provisional minimum value in dispute.

Based on the stated minimum value in dispute of EUR 100'000, the Cantonal Court by order of 2 May 2016 required an advance on costs of CHF 6'600, which was paid on time. At the defendant's request, security for the party costs of CHF 12'000 was also provided.

After a double exchange of written submissions, examination of witnesses, questioning of the parties and closing arguments, the plaintiff on 19 December 2018 requested party costs of CHF 161'082 incl. VAT. It argued that the defendant had sold 55% of the shares in [C. GmbH] for EUR 3.5 million, so that its economic interest exceeded EUR 6 million. The Cantonal Court corrected the amount in dispute to at least EUR 6 million, or approximately CHF 6.6 million, and by order of 13 May 2019 required a further advance on costs of CHF 72'600.

A request for reconsideration was unsuccessful. The plaintiff's appeal to the Superior Court of the Canton of Zug was dismissed by decision of 12 September 2019.

By appeal in civil matters, the plaintiff requested that the decisions of the Superior Court and of the Cantonal Court be set aside and that the original advance on costs be confirmed, or alternatively that the matter be remitted to the Superior Court. The lower court requested dismissal. The respondent disputed his standing as a party and did not file a response to the appeal. By order of 11 November 2019 the appeal was granted suspensive effect.

The issue is whether the advance on costs could be increased during the ongoing proceedings in an unquantified claim, and whether the amount of the increased advance was a proper exercise of discretion.

Considerations

The Federal Supreme Court examines of its own motion the admissibility of the appeal. The challenged decision is an interlocutory decision within the meaning of Art. 93 FSCA, which concerns neither jurisdiction nor recusal. It is only appealable if it may cause a irreparable harm of a legal nature (Art. 93 para. 1 let. a FSCA). The advance on costs is a procedural prerequisite (Art. 59 para. 2 let. f CPC); if it is not paid, the court does not enter into the action (Art. 101 para. 3 CPC). Since the plaintiff showed that it cannot pay the advance and that legal aid is denied to it because of the assets of its sole shareholder, there is an imminent legal harm. The appeal is admissible.

Under Art. 85 CPC, a claim must in principle be quantified; only if this is impossible or unreasonable may an unquantified claim be brought with a minimum value as the provisional amount in dispute. Art. 85 CPC is lex specialis to Art. 91 CPC. Art. 91 para. 2 CPC concerns only petitions not directed at a sum of money and not unquantified claims. The provisional amount in dispute is therefore only provisional; advances and security are also merely provisional. The question is thus not whether the judge may correct the provisional amount in dispute under Art. 91 para. 2 CPC, but whether the advance on costs may be increased in the course of the proceedings. The complaint of a violation of Art. 91 para. 2 CPC and the complaint about the factual findings regarding the alleged error in the original determination are therefore unfounded.

The advance on costs, as a procedural management order, has neither material res judicata effect nor binding effect. An amendment is in principle possible for objective reasons, and is only inadmissible where rights have been conceded or a protection of legitimate expectations applies, whereby a weighing of interests favours stability. The doctrinal opinions cited by the plaintiff, which require an amendment of the action or a changed procedural situation, concern only quantified claims or fixed amounts in dispute under Art. 91 para. 2 CPC, not unquantified claims.

Decision 4A_226/2014 requires an adjustment where circumstances have changed, but names only examples of situations and does not exclude other grounds. The quantification under Art. 85 para. 2 CPC is an obligation at the time it applies, not an exception to the right of adjustment. For fixing the advance, exact quantification is not required. The plaintiff itself stated an economic interest of over EUR 6 million and requested party costs of CHF…