2017/4/5 - 30 Cdo 4883/2016 (summary)

Judgement of the Supreme Court dated 5 April 2017, file number 30 Cdo 4883/2016

(deposit, application of foreign law, principle of reciprocity)

The applicant, domiciled in Dominica, applied for a reduction of the deposit on the legal fees that he had to pay as such obligation had been imposed on him by the court. The reason for imposing this obligation was that the applicant was a foreigner who had no assets in the Czech Republic. Therefore, in the event of his loss, there was a risk that the legal costs would not be paid. No bilateral legal assistance treaty was negotiated between Dominica and the Czech Republic. Dominica is also not a party to the relevant multilateral treaty which removes the institute of the deposit on legal costs. Since the applicant failed to prove material reciprocity, the court rejected his claim to reduce the deposit. The applicant did not provide proof of the content of the relevant positive rules governing proceedings in Dominica. However, the decision was challenged on the grounds that the court did not put sufficient resources and effort to identify the content of foreign law and the reciprocity. The Court of Appeal proceeded pursuant to Act No. 91/2012 on Private International Law, and confirmed the conclusion of the court of the first instance that the possibility to reduce the deposit and the reciprocity were not proved. It held that there was no reason for the court to use the means to prove the existence of such a guarantee in a foreign law when the applicant himself had not put forward the evidence.

The Supreme Court dismissed the appeal. It has pointed out to its case-law on the principle of reciprocity in private international law. He noted that the conclusions made on reciprocity are always only more or less probable. However, a court cannot, in regard to reciprocity, make hypothetical conclusions based on mere assumptions. In particular, the findings regarding the content of foreign legal norms, the practice and the Ministry of Justice's notice are essential for decision-making. It is not possible to simply say which of these facts are more significant. At the same time, it cannot be concluded that the courts in determining reciprocity must necessarily determine the content of foreign legal norms, since the content of foreign law is only one of the legally relevant facts for the final assessment of reciprocity. The Supreme Court subsequently stated that the level of effort necessary for establishing reciprocity was sufficient in this case. The content of a foreign law was not reasonably easily identifiable, the courts asked the Ministry of Justice, which did not produce any result in this respect, and gave the party the opportunity to comment (or eliminating the disadvantage). The legal assessment made by the appellate court was therefore correct.