Month: December 2019

Change of legal qualification of a claim as a basis for overruling a judgment (CMR Convention and tort liability)

In a commercial proceedings for payment of compensation for alleged improper performance of a contract of carriage, our Law Firm represented a large international road carrier acting as the defendant (consignor). The proceedings concerned a claim for damages demanded from our client by an actual carrier punished with an administrative penalty for performing the transport without the required permit.

The trial before the court of first instance, including the exchange of legal arguments between legal counsels of both parties, was mainly reduced to the interpretation of the several provisions of the CMR Convention (i.e. the Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956). This Convention, as the legal basis for the claim, was also indicated by the plaintiff (actual carrier). The court issued a judgment awarding compensation, and based its whole decision on the tort liability regime.

Our Law Firm filed an appeal, which – apart from other violations in the field of substantive and procedural law – was based on the most far-reaching objection, namely the change of the legal basis of the claim (from contract to tort), although such change was in a contrary to the request of the lawsuit, and deprived the defendant of right to defend its rights.

The second instance court shared the defendant’s objections indicated in the appeal we had prepared. According to the court, it was unacceptable to issue a judgement based on a completely different legal basis than the one around which the whole trial was conducted. The court of second instance declared the proceedings invalid and overruled the judgment and remanded the case to the court of first instance for re-examination.

It should be noted that after the extensive amendment to the Code of Civil Procedure, which entered into force in November 2019, the courts are now given the opportunity to warn the parties about the potential possibility of giving a ruling based on a different legal basis.

 

/KH/