On the bias of judges in civil proceedings: If judges do not read a party’s pleadings, this can justify a motion for recusal!

In its decision of 11.05.2022 (Ref. 9 W 24/22), the Higher Regional Court of Karlsruhe rightly ruled that a judge must read written pleadings! In its decision of 11.05.2022 (case no. 9 W 24/22), the Higher Regional Court of Karlsruhe made a very instructive statement on the criteria by which the question of bias is to be assessed:

In its decision of 11.05.2022 (Ref. 9 W 24/22), the Higher Regional Court of Karlsruhe rightly ruled that a judge must read written pleadings! In its decision of 11.05.2022 (case no. 9 W 24/22), the Higher Regional Court of Karlsruhe made a very instructive statement on the criteria by which the question of bias is to be assessed:

“(…) There are circumstances which are suitable to justify mistrust of the impartiality of the challenged judge at the Regional Court … justify.

1. the decisive factor is whether, from the point of view of a party, there is reason to doubt the impartiality and objective attitude of the judge when all circumstances are reasonably assessed. Only objective reasons come into consideration, although these must be considered from the perspective of the party. The circumstances of the individual case, which must be assessed in their entirety, are decisive. (See Zöller/Vollkommer, Code of Civil Procedure, 34th edition 2022, Section 42 ZPO para. 9 et seq. with case law references).

2. a concern of bias arises from the violation of the recused judge’s duty to wait pursuant to Section 47 (1) ZPO. According to the defendant’s motions for recusal, the recused judge was not authorized to issue the orders of 22.11.2021 (I, 208) and 03.12.2021 (I, 319). From the relevant perspective of the defendant, the violations allow the conclusion to be drawn that the judge clearly lacked diligence in perceiving and considering the defendant’s submissions (cf. on this aspect Zöller/Vollkommer, loc. cit., Section 42 ZPO para. 24 with case law references). From the defendant’s perspective, the infringements give rise to the fear that the rejected judge might not take the defendant’s submissions seriously in an appropriate manner, even in the event of a subsequent decision on the merits.

a) The violations by the rejected judge are serious. The duty to wait pursuant to Section 47 (1) ZPO is not merely of a formal nature; rather, it is an expression of the principle of the statutory judge, which is essential for civil proceedings. Official acts that cannot be postponed are not apparent in the orders of 22.11.2021 and 03.12.2021 and were not asserted by the rejected judge. The motions for recusal were, insofar as procedural errors by the judge in the period prior to the statement of defense were criticized, also admissible from the perspective of the recused judge and not an abuse of law. The orders of 22.11.2021 and 03.12.2021 were therefore not based on an incorrect, but justifiable, legal opinion of the judge (see BGH, decision of 07.03.2012 – AnwZ (B) 13/10 -, cited in Juris).

b) The double overlooking of the motions for recusal by the rejected judge is not comprehensible in the course of normal processing. (…)

The rejected judge’s reference that he only looked at the table of contents when responding to the complaint does not change anything. This does not meet the legitimate expectations of a party, regardless of the length of the pleading. Rather, the provision in section 139 (1) sentence 3 ZPO assumes – irrespective of the judge’s workload – that the judge constantly keeps an eye on the receipt of written pleadings to ensure appropriate procedural support (see Zöller/Greger, loc. cit., section 139 ZPO para. 4 c with references). This requires prompt knowledge of the content of the respective pleading.

Moreover, the judge’s reference to the table of contents of the statement of defense is not sufficient to explain the (first) breach of the duty to wait in the order of 22.11.2021. It is clear from the table of contents that the statements in the statement of defense “on the merits” do not begin until page 7, so that the judge had to expect other procedural statements at the beginning of the pleading (before the statements on the merits), which from the perspective of the defendant’s legal representative may have been of primary importance. The rejected judge also took note of the table of contents only incompletely at best, as the statement of defense was never served on the defendant (cf. I, 1 d) kk) of the table of contents).

In connection with the application for recusal, the defendant rightly points out that Judge at the Regional Court … as the representative of the recused judge promoted the proceedings in the main action by the orders of 10.01.2022 (I, 328) and 08.02.2022 (I, 342), although she was not authorized to do so pursuant to Section 47 (1) ZPO. If it had been a matter of an action that could not be postponed, only the dismissed judge, Judge at the Regional Court …, would have been authorized to decide on these measures himself. From the perspective of the defendant, the question arises as to whether the recused judge – in connection with his own violations of § 47 (1) ZPO – was of the incorrect opinion that, according to the recusal motion, the judge at the Regional Court … as his representative could promote the proceedings in the main action by taking appropriate measures until the final decision on the application for recusal.

c) An “obvious mistake” does not preclude the judge’s recusal.

a) According to the official statement of the dismissed judge dated 12.01.2022, it can be assumed that the violations of Section 47 (1) ZPO were due to an oversight (double overlooking of the motions for recusal). However, there are certain doubts as to whether this oversight was obvious from the relevant perspective of the defendant (see, for example, OLG Brandenburg, NJW-RR 2000, 1091, on an obvious oversight in the event of a breach of Section 47 (1) ZPO), or whether, from the defendant’s perspective, the possibility that the rejected judge did not take his duty to wait seriously was to be expected. However, this question is irrelevant for the decision of the Senate.

b) Even if one were to assume an obvious oversight on the part of the rejected judge, from the defendant’s perspective there are reasonable doubts as to the impartiality of the judge. This is because the oversight can only be explained by an evident lack of diligence on the part of the judge (see above in detail). This means that, from the defendant’s perspective, the errors of the rejected judge justify the fear that the rejected judge might not take sufficient account of the defendant’s submissions and viewpoints and take them seriously in the further conduct of the proceedings, in particular in a subsequent decision on the merits.”