Assessing the Risks of Pre-Suit Discovery in Switzerland

The new Civil Procedure Code (CPC) entitles a party to apply to the court to secure evidence that could later be lost, where a statutory rule provides for the taking of such evidence or where an applicant can demonstrate a legitimate interest. The intent of the provision is to enable potential litigants to assess their trial chances ahead of having to lodge a court action.

The question is then who bears the court costs of such pre-action proceedings. The rule of Art. 107 CPC has been found to be aptly suited to such proceedings. This provision allows under special circumstances, where the general cost allocation rule would result in an inequitable outcome (opposing party entitled to party costs), the court can allocate costs at its discretion. This could mean if the applicant decides not to pursue the claim after pre-action proceedings that the applicant bear the costs. The court accepted the proposition that a party being drawn into pre-action proceedings should be entitled to party costs on the condition that the court could reallocate such costs when adjudging the main claim. The reasoning is that a counterparty could not recognize the application for the provisional taking of evidence and could not avoid the proceedings.

Thus, potential litigants in Switzerland need to assess the risk before even filing a pre-action proceeding seeking factual evidence to decide whether a full court action is warranted.