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Judgement of the Court of Appeal in Brunswick –  Case No.: 2U55/01 (Regional Court in Brunswick, Case No.: 9 0 114/00 (16))

Summary

In its part judgement of 21st February 2001, the Regional Court in Brunswick ordered the defendant by means of action by stages to disclose information in the first stage to the plaintiff and to render account for all agreements that he has reached since 1st June 1995 concerning the use of the character “Donkey” designed by the plaintiff. The court ordered the defendant to include in his account names and addresses of licensees, as well as reimbursements agreed upon and obtained by the defendant.

The defendant lodged an appeal against this judgement in due form and time. However, according to § 519 b of the Code of Civil Procedure the appeal is dismissed on the merits, because the value of the matter of complaint does not exceed DM 1500 (€ 750). Under § 511 a of the Code of Civil Procedure, when lodging an appeal against a judgement to disclose information or render account, the value of the matter of complaint is calculated according to the time and expenses involved in the fulfilment of the legally enforceable claim and according to the defendant’s possible desire to keep secrecy, but not according to the value of the claim to be entitled to information (Federal Supreme Court in Civil Matters, BGHZ 128, 85ff). Since the defendant’s desire to keep secrecy cannot be asserted in this case, the value of the matter of complaint depends solely on the time and expenses involved.

The defendant’s reports on the above differ. Initially, he assessed his having worked for three hours in each of the seven business years at DM 100 (€ 50) a year and further explained that this also included the verification and determination of the up-to-date names and addresses. The plaintiff opposed this correctly, stating that the latter was not owing according to the part judgement.

Finally, the defendant reported that all accountancy documents amounting to a total of 74 files of approx. 80 pages each were to be worked out in detail, for which 0.75 hours per file were necessary, whereas the for the work of the defendant’s accountant DM 41.11 (€ 20.55) an hour were due. Not only did the accountant have to fetch the files from the archive in the cellar, but he also had to check the extract of account and the receipt of money. Furthermore, he had to sift through the receipts of money in cash books and check business transactions on two of company bank accounts. His tasks involved moreover tacking in and out receipts, drafting and revising lists, as well as copying and putting things in order.

According to the part judgement, the defendant has to disclose information concerning agreements specified in the part judgement, as well as information concerning reimbursements agreed upon and obtained by the defendant. It is therefore sufficient to report on agreements which could result in reimbursements agreed upon. The last issue to examine is which reimbursements were actually paid. The above-described tasks do not, however, require checking all accountancy documents and to two company bank accounts. The information obtained in this way is to be presented orderly and in a transparent manner by the plaintiff. The effort of working out 74 files reported by the defendant is therefore not necessary.

The duty to disclose information relates to approx. six business years up to the authoritative receipt of the appeal. When assessing the costs involved at DM 50 (€ 25) per hour, which is still more than the costs last asserted by the defendant, then five hours of work would fall to each business year, which would not exceed the value of complaint. This is two hours a year more than three hours a year originally stated by the defendant. All in all, such an effort seems to be realistic and is therefore to be assessed under § 3 of the Code of Civil Procedure (cf. BGH NJW 1999, 30500 on assessing the value in similar matters).

According to § 119 (1) Sentence 2 of the Code of Civil Procedure, the plaintiff shall receive civil legal aid for the appellate instance in the amount applied for provided he defends himself against the appeal of the defendant. He shall not, however, be granted any civil legal aid for the counter-appeal intended by him, because the counter-appeal would become ineffective with the dismissal of the appeal under § 522 (1) of the Code of the Civil Procedure. On the basis of the advice of the chairperson of 23rd May 2001 to clear up the value of the matter of complaint at first, a cost-conscious party could defer a counter-appeal until the decision on the admissibility of the appeal is made.

The costs order with respect to the appeal is based on § 97 (1) of the Code of Civil Procedure and with respect to the proceedings for the establishment of the civil legal aid – on § 118 (1) Sentence 4 of the Code of Civil Procedure.

Göring                 Dr. Achilles       Dr. Weber-Petras

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