Bringing civil claims in Switzerland

Litigation

What are the time limits for bringing civil claims?

The limitation periods are governed by substantive law. Civil claims generally become time-barred after 10 years. This rule applies to most contractual claims. However, claims for rent, interest on capital and other periodic payments become time-barred after five years. The same is true for claims in connection with the delivery of foodstuffs, board and lodging, hotel expenses, as well as for claims for work carried out by craftsmen, doctors, lawyers, notaries, and employees.

Tort claims and claims for the restitution of an unjust enrichment become time-barred one year from the date on which the injured party became aware of his or her claim and of the identity of the person liable, but in any event 10 years after the date on which the damage or unjust enrichment was caused. If an action for damages is derived from an offence for which criminal law envisages a longer limitation period, that longer period also applies to the civil law claim.

Aside from limited exceptions, the statutory limitation periods start running as soon as a debt becomes due. The limitation periods are, however, interrupted and thereby caused to start anew if the debtor acknowledges the claim and in particular makes interest payments or partial payments. Furthermore, the limitation periods are interrupted if the claimant initiates debt enforcement proceedings, files an application for reconciliation, or submits a statement of claim to a court.

Generally, the statutory limitation periods may not be altered by contract. However, the time limits may be waived after a claim came into existence. It is therefore possible to enter into tolling agreements. Lastly, it is important to note that the courts may not consider any statute of limitation on their own accord. Instead, a debtor intending to rely on a statute of limitation must explicitly invoke this defence.

Are there any pre-action considerations the parties should take into account?

In principle, there are no particular steps a party must take before initiating court proceedings. For example, a defendant does not have to be notified in advance of a lawsuit. Likewise, there is no substantive obligation to answer warning letters of a prospective claimant.

It is, however, customary to communicate with the counterparty before entering into a lawsuit. Also, remaining silent to a warning letter might cause the claimant to issue unnecessary proceedings. This circumstance may lead the court to impose court costs on the defendant even if he or she prevails.

Swiss procedural law does not provide for US- or UK-style pretrial discovery or disclosure proceedings. However, it is possible to request the precautionary taking of evidence in summary proceedings if substantive law grants a right to do so, or if the applicant can show credibly that the evidence is at risk or that he or she has a legitimate interest.

To substantiate a legitimate interest, the applicant must show credibly that he or she would have a claim against the opponent if the evidence were to establish specific events. A claim is credible if the applicant presents objective indications that the factual requirements of the claim - other than those to be proven by the precautionary taking of evidence - are met.

How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?

To initiate civil proceedings, the claimant generally first has to file an application for reconciliation with the cantonal conciliation authority. The application for conciliation must identify the defendant and include the prayers for relief as well as a short description of the dispute. The conciliation authority serves the application for conciliation on the defendant by registered mail or international judicial assistance and summons the parties to a hearing.

At the hearing, the conciliation authority attempts to settle the dispute. To facilitate this endeavour, the parties have to appear in person, and the statements made during the hearing are confidential and may not be used in the further proceedings. If no agreement is reached, the conciliation authority grants the authorisation to proceed with the competent court. Based on this writ to proceed, the claimant is entitled to file the action in court within three months from the issuing of the authorisation.

In some instances, it is not required to complete conciliation proceedings before filing the action with the courts. This is, for example, the case with summary proceedings, divorce proceedings, certain debt enforcement actions, counterclaims, as well as with proceedings before a commercial court or another sole cantonal instance. The parties may further agree to waive any attempt at conciliation if the amount in dispute is at least 100,000 Swiss francs. If the defendant is domiciled abroad or has no known residence, the plaintiff may waive conciliation unilaterally.

An action is brought before the competent court by filing a statement of claim. This statement must contain the designation of the parties and their representatives, the prayers for relief, a statement on the amount in dispute, the factual allegations, and notice of the evidence offered for each assertion. The available physical records the claimant offers as evidence have to be filed together with the statement of claim.

Having received the statement of claim, the courts usually request the claimant to pay an advance on court costs. The defendant is then served with the statement of claim by registered mail and is given a deadline for filing the statement of defence. If the defendant is domiciled outside Switzerland, the statement of claim is again served through international legal assistance channels.

The civil courts in Switzerland do not experience serious capacity bottlenecks. There are legislative efforts to relieve the Supreme Court of some of its workload; however, this project mainly concerns criminal and administrative proceedings.

What is the typical procedure and timetable for a civil claim?

The proceedings before the cantonal conciliation authorities usually do not last longer than three months. If the claimant thereafter files a statement of claim, the courts usually request an advance on court costs to be paid within 10 to 30 days. Some courts already serve the statement of claim on the defendant when they ask for the payment of the advance; other courts only serve the statement of claim after having received the advance on court costs.

Once the advance has been paid, the defendant is set a deadline of about 60 days to file the statement of defence. Thereafter, the courts often invite the parties to an instruction or settlement hearing in which they provide a preliminary assessment of the case and try to settle the matter. It may happen that the parties are invited to orally present their reply and rejoinder at the instruction hearing. Usually, it takes three to five months to summon the parties to and complete the instruction hearing.

If the parties are not summoned to an instruction hearing, or if they were not given the opportunity to present their reply and rejoinder at such hearing, the claimant is given a deadline of approximately another 60 days to file his or her reply, and the defendant is finally invited to file the rejoinder usually within another 60 days. Once the exchange of written submissions is closed, the parties are summoned to the main hearing, and the court proceeds to take the evidence. Lastly, the court provides a written decision on the merits.

Overall, it usually takes between one and two years from the filing of the claim to the rendering of a first instance judgment. Appeal proceedings in civil matters in the cantonal courts of appeal take approximately six months. A civil appeal to the Supreme Court is on average decided within less than five months. Consequently, in a civil litigation, the parties can usually expect to receive a final and enforceable judgment after no more than three years.

Can the parties control the procedure and the timetable?

Under Swiss procedural law, the management of civil cases lies within the responsibility of the courts. The parties have very limited influence on case management issues. However, deadlines for the filing of briefs may sometimes be extended. Many courts, for example, initially set a deadline of only about 20 days to file the statement of defence but follow the practice that such deadline may be extended twice. If a party is interested in accelerating the proceedings, it can file its briefs early.

Some courts also take into consideration whether the parties are interested in having an instruction hearing or not. If one of the parties declares that it does not wish to take part in a settlement hearing, it is likely that the court will refrain from summoning the parties to such a hearing. In that case, the court will also not provide its preliminary assessment of the case, which is normally rendered at the instruction hearing. From the defendant’s point of view, this can be advantageous if the claimant missed important points in the statement of claim.

May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?

Two or more parties may jointly file an action or be sued as joint defendants if their rights and duties result from similar circumstances or legal grounds and if their individual cases are subject to the same type of procedure. Moreover, associations and other organisations of national or regional importance that are authorised by their articles of association to protect the interests of a certain group of individuals may bring an action in their own name for a violation of the personality of the members of such group. However, such associations may only request the court to prohibit an imminent violation, put an end to an ongoing violation or establish the unlawful character of a violation. In contrast, actual class actions (ie, proceedings in which one of the parties is a group of people who are represented collectively by a member of that group) are currently not known in Switzerland.