Appeal law: When is a submission late in the appeal proceedings?

The correct decision on late submissions in appeal proceedings is of great practical importance, as late submissions are generally not to be considered by the court of appeal.

In a significant decision, the Federal Court of Justice (BGH) has reminded us that in many cases, the court of appeal must nevertheless take into account means of attack and defense that have already been disregarded by the court of first instance (BGH, decision of 27.2.2018 – Ref. VIII ZR 90/17).

The BGH decision on late submissions (case no. VIII ZR 90/17)

1. A frequently misinterpreted paragraph is Section 531 (1) ZPO:

“Defense and attacking arguments that were rightly rejected at first instance remain excluded.”

This provision is often interpreted too broadly by appeal courts, particularly in light of Section 296a sentence 1 ZPO:

“After the conclusion of the oral hearing on which the judgment is rendered, no further means of attack or defense may be presented.”

2. Many courts of appeal wrongly assume that submissions that were rejected in the first instance pursuant to Section 296a ZPO are also excluded from the appeal proceedings pursuant to Section 531 (1) ZPO.
3. As the BGH has stated, this does not correspond to the legal situation under the ZPO. § Section 531 (1) ZPO only applies if the submission was rejected in the first instance on the basis of Section 296 (1) to (3) ZPO. However, if it is based on Section 296a ZPO, Section 531 (1) ZPO does not apply – regardless of whether the decision was correct or incorrect.

Questions about the appeal procedure and late submissions?

Contact me in confidence for professional advice.

On the question of when submissions in the appellate instance are “new”, please also read my article on the scope of a so-called pleading indulgence!