In the legal dispute
xxx
Plaintiffs,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx
defendant,
The Social Court of Hildesheim – 33rd Chamber –
on December 15, 2010,
through its presiding judge, xxx
:
The defendant must reimburse the plaintiff for his necessary extrajudicial costs.
Reasons:
I.
After the plaintiff declared the proceedings settled, the parties are now only disputing the costs. The main issue in dispute was the defendant's inaction in response to the plaintiff's objection, filed by letter dated March 22, 2010, against the decision of March 9, 2010.
The plaintiff declared the action filed on July 9, 2010, to be settled by letter dated August 13, 2010, after the defendant had informed the plaintiff by letter dated August 11, 2010, that the decision on the objection had been issued on August 11, 2010.
The plaintiff now requests in writing,
to compel the defendant to reimburse the necessary extrajudicial costs.
The defendant requests in writing, in essence, that
to reject the application.
The lawsuit was inadmissible after the decision was issued. Furthermore, sufficient grounds for inaction existed because the plaintiff was neither at the address stated in the statement of claim nor in Duderstadt. The defendant generally only decides on the merits once this matter is clear. Without knowledge of the plaintiff's whereabouts, it was impossible to provide accurate information regarding the right to appeal.
II.
Pursuant to Section 193 Paragraph 1 of the Social Court Act (SGG), the court must decide by order, upon application, whether and to what extent the parties are to reimburse each other's costs if the proceedings – as in this case – are terminated other than by judgment. This basic decision on costs is at the court's discretion, whereby, taking into account the previous state of the case and the legal arguments, particular consideration must be given to the prospects of success (Meyer-Ladewig/Leitherer, in Meyer-Ladewig/Keller/Leitherer, SGG, 8th edition, Section 193, marginal note 13 with further references). Further criteria for the cost decision are, above all, the outcome of the proceedings, the circumstances that led to the filing of the lawsuit, and the circumstances that led to the settlement of the dispute (cf. Niesel, Der Sozialgerichtsprozess, 4th edition, marginal notes 610, 613 with further references).
The exercise of the discretion granted to the court leads to the result that the defendant must bear the plaintiff's necessary extrajudicial costs.
After a preliminary review, taking into account the existing facts and legal arguments, the action had a prospect of success. In particular, it was admissible. The plaintiff was only relieved of his claim upon issuance of the requested decision in the ongoing proceedings, whereupon he declared the proceedings concluded.
Furthermore, there was no sufficient reason within the meaning of Section 88 of the Social Court Act (SGG).
The fact that the plaintiff's whereabouts were unknown did not prevent the defendant from making a decision on the merits. Simply invoking the established practice of only deciding on a case once the plaintiff's whereabouts are known does not constitute sufficient grounds within the meaning of Section 88 of the Social Court Act (SGG). This is particularly true given that the plaintiff's authorized representative had already been instructed to file the objection and was therefore entitled to receive service of process – meaning that service could be effected on him.
This decision is unappealable pursuant to Section 172 Paragraph 3 No. 3 of the Social Court Act (SGG) in the version applicable from April 1, 2008.
