In the case of an incorrectly named statement of claim, the Hamm Higher Regional Court decided that the indication of the incorrect board of directors did not affect the admissibility of the claim.
In the statement of claim, a false person was mistakenly listed as the representative of the plaintiff foundation, which, however, was harmless because the identity of the plaintiff party was preserved and there was no evidence that the lawsuit was brought without the consent of the body actually authorized to represent the company, i.e. the board of directors . According to the court, such formal errors can be corrected ex officio at any time as long as there are no doubts about the legitimacy of the action:
The lawsuit is not inadmissible because the statement of claim incorrectly stated that the plaintiff was represented “by the President Dr. JL.. TU. YH.”. It is correct that the plaintiff is represented by the board (§§ 86, 26 Abs. 2 BGB).
However, this false description on the part of the plaintiff contained in the statement of claim does not cause any harm. As long as the identity of the party is preserved, such inaccuracies are harmless and can be corrected ex officio at any time (Althammer in: Zöller, Code of Civil Procedure, 34th edition 2022, preliminary remarks on §§ 50-58, Rn. 7). The decisions of the Federal Court of Justice cited by the defendant in a letter dated October 17, 2023 concern other issues, namely incorrect representation information on the defendant’s side. For example, the cases cited concerned, among other things, the question of whether the shareholders can remedy a lack of representation by entering the process as legal representatives and approving the previous process. In one case, a lawsuit was brought against the defendant, represented by the board of directors, and served on the board of directors, but not on the supervisory board, which was the sole authorized representative (BGH, judgment of February 16, 2009 – II ZR 282/07 –, Rn. 8, juris).
In another case, the plaintiff there did not mistakenly misidentify the defendant’s legal representative, but rather viewed its board of directors, albeit incorrectly, as its legal representative and accordingly listed it in the statement of claim (BGH, judgment of October 9, 1986 – II ZR 284/85 –, paragraph 11, juris). With the present facts, these cases concern constellations in which the specification of the body appointed to represent is exceptionally required for the admissibility of the action (cf. BeckOK ZPO/Bacher, 50th ed. September 1, 2023, ZPO § 253 Rn. 90.1), not comparable. It is not apparent that the present lawsuit was not brought with the consent of the actual body authorized to represent the plaintiff, the board of directors of the plaintiff. Such an objection, in particular the lack of authorization, was not raised by the defendant – not even implicitly.
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