UPC CFI, LD Hamburg, 2 June 2025: The standard of care for re-establishment of rights must be interpreted autonomously
21-08-2025 Print this page
If a time limit provided for in the Rules of Procedure or set by the court has been missed, the party has no option but to apply for re-establishment of the previous status, provided that it is not a time limit that cannot be extended (R. 9.3 RoP, R. 320 RoP).
The standard of care must be interpreted autonomously (R. 320.1 RoP).
The required care (“all due care”/”Sorgfalt”/ “toute la viglance nécessaire“) is generally deemed to have been exercised if the party has taken all reasonable precautions to enable it to comply with the time limit.
This includes, among other things, the implementation of team functions and rules on representation. The requirements for the standard of care are further specified by the fact that compliance with the required care is equivalent to the party ultimately missing the deadline for a reason beyond its control ("outside his control"/"hors de son contrôle").
In accordance with these principles, the application for reinstatement had to be granted.
The plaintiff has credibly demonstrated that it has implemented a system for monitoring and controlling deadlines that is adequate in terms of content, based on the dual control principle and monitored by the legal representative, at least on a random basis. It has credibly demonstrated that that despite the dual control principle the failure to record the deadline for submitting cost claims was inadvertently not noted.
The plaintiff's legal representative cannot be accused of a lack of supervision, instruction or selection of the employees. In this respect, a further distinction must be made between the requirements for compliance with and monitoring of non-extendable deadlines and those for compliance with and monitoring of deadlines that are extendable in principle.
The standard of care for non-extendable deadlines [...] is higher because failure to meet them immediately threatens a loss of rights. In contrast, the time limit at issue in the present case for initiating proceedings for a decision on costs is already extendable in principle.
