Responding to the claim

Early steps available

What steps are open to a defendant in the early part of a case?

After having received a statement of claim, the court serves the claim on the defendant together with an order to file a statement of defence within four weeks of service. A defendant may file for an early dismissal of the claim if the claim is already time-barred or inconclusive, or if procedural requirements are missing (ie, lack of jurisdiction).

In general, the first step in responding to a claim is the written defence. The defendant can include all relevant information that supports its position, and whether it is directed towards rejection (on formal or material grounds) or merely reduction of the claim. It is also possible for the defendant to raise a counterclaim in which he or she can dispute the cause of action, and also the amount claimed by the claimant.

In a case where the defendant brings an independent claim before the same court against the same claimant, and that claim is closely connected to the initial claim brought against the defendant by the claimant, he or she can file a counterclaim.

In the written defence, the defendant may also bring forward a claim for set-off.

If the defendant fails to present a defence to the claim brought against him or her, the court may issue a default judgment.

Defence structure

How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?

A statement of defence needs to be filed within four weeks of service of the statement of claim. If the defendant misses this four-week deadline, the plaintiff may request a default judgment. In proceedings at the district court level, a simplified procedure applies and a statement of defence is not required.

In general, a statement of defence contains the counterarguments to the statement of claim and therefore needs to fulfil roughly the same criteria as a statement of claim (eg, be signed by an attorney).

The statement of defence also needs to contain the defendant’s specific requests (such as a dismissal or reduction of the plaintiff’s claim), supported by all the relevant legal and factual elements that underpin such objections and requests, as well as an identification of the evidence that the defendant wishes to present to the court.

Note that the defendant can raise jurisdictional objections solely at the stage of its statement of defence, while other types of objections can be raised at a later stage.

Changing defence

Under what circumstances may a defendant change a defence at a later stage in the proceedings?

It is possible to add new arguments up to the closing of the oral procedures.

Afterwards, the presentation of new evidence is no longer allowed. Settled case law, however, does allow amendments to further prove (or rebut) procedural violations. Conversely, new legal arguments brought in support of a claim are allowed at any time.

Sharing liability

How can a defendant establish the passing on or sharing of liability?

In general, Austrian law does not provide any mechanisms by which a defendant can pass on liability to a third party.

The right to participate in legal proceedings is tied to a person’s legal interest (jus standi). Once a defendant thinks a third party is liable and it can take recourse against this party, the defendant can serve a third-party notice. Thus, the third party has to decide whether it wants to join the pending proceedings. If the third party refuses to join the proceedings, the judgment regarding the claimant’s and defendant’s proceedings will also be binding in a subsequent proceeding between the defendant and the third party.

Avoiding trial

How can a defendant avoid trial?

Motions to dismiss a claim or jurisdictional objections are usually filed with the statement of defence submitted in answer to the statement of claim.

Additionally, it is possible to settle a dispute both in court as well as out of court. Out-of-court settlements can be made through mediation or other means of amicable dispute resolution. Both in-court settlements and out-of-court settlements (as long as they are certified by a notary public) are enforceable like a judgment.

Case of no defence

What happens in the case of a no-show or if no defence is offered?

If any party fails to file a statement of defence in due time or fails to attend the preliminary hearing, the other party may request the court to issue a default judgment.

In the case of an unforeseen or inevitable event a party may, within 14 days, file for restitutio in integrum. Concurrently, the party needs to execute the omitted act.

Claiming security

Can a defendant claim security for costs? If so, what form of security can be provided?

If a foreign party initiates legal proceedings before an Austrian civil court, the respective (domestic) defendant may request that the court order the foreign party to provide security for costs incurred by the defendant, unless an international convention provides otherwise.

However, this does not apply if the (foreign) claimant has its domicile in Austria or if the decision on costs of the Austrian court is enforceable in the claimant’s state of residence.

Moreover, all claimants who are citizens of EU member states are exempt from the security for costs provision due to the principle of non-discrimination of EU citizens.

The defendant must submit an application for security for costs before it makes further submissions on the merits of the claim.