Care advised in the reimbursement of costs of third-party intervention
If a third party intervenes in proceedings and the primary party wins, there is a potential risk that the time limit for the claim to reimbursement of procedural costs may be missed.
The provisions governing this claim to reimbursement itself are clearly set out in Section 101 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO): the costs entailed by a third-party intervention in support of a party to the dispute are to be imposed on the opponent in the proceedings.
Despite this clear legal wording, it is not unusual in practice for the adjudicating court to affirm the main party’s costs but not those of the third-party intervener, even if a corresponding application for the intervener’s costs has been made in the alternative. As no decision on costs then exists, the certifying court officer is unable to allow any subsequent application for costs. The third-party intervener thus receives no reimbursement of these costs from the opponent although the law states that it is entitled to them.
If the decision on costs is passed as part of a judgement, the amendment of the judgement should be requested for the third-party intervener pursuant to Section 321 ZPO. It is also important that Section 321 ZPO is applied accordingly if the decision on costs is passed by way of a court order, such as after the abandonment of an appeal by corresponding judicial notice from the appeal court. As a result of this, an application for subsequent affirmation of the third-party intervener’s costs is, in any event, subject to the two-week period set out in Section 321(2) ZPO.
In practice, this particularly means that where a decision on costs passed by court order with due application of Section 321 ZPO fails to take account of the two-week period, the third-party intervener is unable – even in spite of the clearly defined legal situation – to assert any further claim against the opponent for the reimbursement of costs. Depending on the value in dispute, these could amount to a hefty sum.