Responding to the claimEarly steps available
What steps are open to a defendant in the early part of a case?
The following steps are open to a defendant in the early stages of the proceedings:
- raising (procedural) objections such as lack of jurisdiction, res judicata, lis pendens, etc (article 59 ZPO). While these objections are to be examined ex officio, in particular with respect to jurisdictional defences, it should be noted that a defendant risks accepting jurisdiction by entering an appearance on the merits without objecting to jurisdiction (article 18 ZPO);
- requesting security for party costs (article 99 ZPO) (see question 29);
- requesting security for damages resulting from interim measures (articles 264-265 ZPO, article 273 SchKG);
- raising a counterclaim together with the statement of defence (article 224 ZPO);
- requesting that proceedings be limited to individual issues (article 125 ZPO); and
- issuing a third-party notice to the party that the defendant may wish to take recourse against (article 78 ZPO) or filing a third-party action against the aforementioned party (article 81 ZPO) (see question 26).
How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?
The structure of the statement of defence is essentially the same as that of the statement of claim, and the same type of documents are to be attached (see question 17). The defendant must state which specific allegations of fact of the claimant it disputes or acknowledges (article 222, paragraph 2 ZPO).
The court will set the defendant a time limit for response, and upon reasoned request such time limit can be extended.Changing defence
Under what circumstances may a defendant change a defence at a later stage in the proceedings?
In principle, a defendant may change or raise a defence at any stage of the proceedings. However, once the main hearing has commenced, a defendant is limited to raising new facts and presenting additional evidence to the extent that they have only occurred after the written pleadings have been completed or, if they existed prior to this, could not, despite reasonable diligence, be argued and presented beforehand (article 230 ZPO).Sharing liability
How can a defendant establish the passing on or sharing of liability?
The defendant can make a third-party notice (article 78 ZPO) by which the defendant notifies a third party that proceedings are pending and that the third party may intervene in these proceedings. If the third party chooses not to intervene, in principle, such third party is bound to the negative outcome of the proceedings.
The defendant can also file a third-party action (article 81 ZPO) together with its statement of defence or as reply, by which such third party is made a defendant in its own right with respect to the party filing the third-party action. The court seised of the main matter then decides whether to conduct the main proceeding and the third-party action together in one proceeding or as separate proceedings.Avoiding trial
How can a defendant avoid trial?
There is no trial as such in Switzerland. The pleadings (statement of claim and defence, reply and rejoinder) are typically made in writing, while the main hearing is comparatively short. For a description of proceedings, see question 30. Requests for summary judgments are not available under Swiss law. A defendant can, however, request that the proceedings be limited to certain issues. It can, for example, dispute jurisdiction or raise a statute of limitation defence and request the court to first rule on these defences.
A significant number of cases do not proceed to a hearing due to a settlement between the parties.Case of no defence
What happens in the case of a no-show or if no defence is offered?
As a general principle, if the defendant fails to appear or participate in the proceedings, the proceedings are continued in the defendant’s absence (article 147 ZPO). This has the effect that a claimant’s allegations of fact are not considered disputed and, accordingly, if a claimant’s presentation of facts is consistent and logical, and supports the requisite elements of the claim, the court will render judgment in favour of the claimant. However, if the court has serious doubts as to the truth of an undisputed allegation of fact, it may take evidence on this point ex officio (article 153, paragraph 2 ZPO).
Moreover, the court will examine ex officio whether the procedural requirements are met: that is, whether the claimant has a justifiable interest in the litigation, whether the court has jurisdiction, whether the parties have the capacity to be parties and to take legal action, and whether lis pendens or res judicata applies (article 59 et seq ZPO).
Other defences, which are to be examined only on the motion of the defendant (eg, statute of limitations), will not be considered.Claiming security
Can a defendant claim security for costs? If so, what form of security can be provided?
In the case of ordinary proceedings (article 99 ZPO), a defendant can request security for party costs if the claimant:
- has no residence or domicile in Switzerland;
- appears to be insolvent, notably if a claimant has been declared bankrupt or is involved in ongoing composition proceedings or if certificates of unpaid debts have been issued;
- if the claimant owes costs from prior proceedings; or
- if, for other reasons, there seems to be a considerable risk that the compensation awarded for party costs will not be paid.
Several international treaties (eg, the Hague Convention relating to Civil Procedure of 1 March 1954) require Switzerland to treat nationals of the respective member states of the Convention the same as Swiss nationals and bar security for costs merely on the basis of a foreign domicile or place of residence.
Security can be provided in cash (wire transfer) or in the form of a guarantee of a Swiss-domiciled bank or an insurance company admitted to do business in Switzerland (article 100, paragraph 1 ZPO).