Settlement and proceedings: staged action and accounting in damages cases

The amount of a damages claim is not always visible from the claimant’s own records. The other side may hold accounts, business records or information about asset movements that is needed to calculate the loss. The question then arises whether a staged action with accounting is the appropriate route.

A staged action combines several steps. First, information or accounting is requested. The claim is then specified on the basis of that information. Only at the next stage is payment sought. This is not a general remedy for every uncertain claim. The underlying substantive legal basis must already exist.

Article XLII EGZPO regulates an action for disclosure of assets or liabilities and can, in certain circumstances, allow the specific payment claim to be reserved until the information is provided. Sections 226 and 228 ZPO still require a specific claim or a legal interest where a declaration is sought. This article explains staged actions in Austrian damages law.

A staged action is a procedural route for cases where the claim is based on a concrete legal relationship, but its amount can only be established through information held by the person required to provide it. A typical example involves income, transactions or asset movements known only to the other side and needed to calculate damages.

The first stage does not cover every piece of information that might be interesting. It must be linked to an existing duty to provide information, assets or accounts. The Supreme Court has stressed that Article XLII EGZPO does not create a new substantive right to accounting. The duty must already arise from civil law, a contract or a specific statutory rule.

The portal guidance on evidence, negotiation and limitation helps organise the chronology. In damages cases, the act, the information and the specific loss must be connected.

Information may require communication of specific facts or transactions. Accounting generally goes further. It should present relevant income, expenditure, transactions or asset movements in a way that can be checked. The required form depends on the legal basis and the purpose of the information.

An account does not have to contain every imaginable document. The relevant transactions are those connected to the claim being asserted. The period, counterparties, income, expenditure, records and presentation should therefore be described as precisely as possible. A request for “full transparency” is not a specific claim.

The information right must also be kept separate from the damages claim itself. The claimant must explain why the requested information is necessary to examine or calculate the loss. The guidance on consequential loss shows how heads of loss and evidence can be separated.

Article XLII EGZPO presupposes a specific legal situation. A person seeking information, accounting or a statement of assets needs a private-law interest and must rely on an existing obligation. The provision assists enforcement and quantification, but a claimed loss alone does not create a new information duty.

Before filing, identify the legal relationship and the person entitled to claim. Possible bases include contractual agency, a trust relationship, a specific statutory rule or a breach of duty where only the other side knows the figures needed to calculate the loss. A mere suspicion without a legal basis will not support the first stage.

The Supreme Court has also noted that a special auxiliary right to accounting is needed only where the required data cannot be obtained by other means. Prior requests and documents already available therefore matter. The claim check helps sort the opponent, legal basis and heads of loss.

Section 226 ZPO requires specific relief, the relevant facts and the evidence. In a staged action, the claim must show which information or accounting is sought. This includes the period, the transactions and the connection with the alleged loss.

An application that is too broad may go beyond the substantive basis. One that is too narrow may omit information needed for the later calculation. A useful description defines the relevant business area and identifies the required information and records.

The second stage cannot be completely detached from the first. Once the account is delivered, it must show which items are relevant to the calculation. The payment claim may initially be reserved, but the damages claim being examined must remain identifiable.

The starting point is the legal basis, the facts and the missing information. The first stage then seeks information, a statement of assets or accounting. Depending on the legal basis, specific records and a verifiable presentation may also be required.

After the first stage, the relevant income or transactions are assessed. The payment claim is calculated and specified. The first stage is therefore not an end in itself. It is intended to make a specific performance claim possible.

The court remains bound by the claim and the legal basis asserted. Section 405 ZPO prevents an award of something different or more without the necessary foundation. In pending proceedings, a settlement under section 204 ZPO can regulate the stages and further performance.

Evidence does not start only after the account arrives. Before that, document the event, breach, claimant and specific loss. Contracts, emails, payment flows, minutes, expert opinions, photographs and correspondence may all be relevant.

For accounting, it must additionally be shown why the requested data are missing and which calculation step they enable. For lost income, individual transactions, periods or cost items may be decisive. In personal injury cases, medical records, treatment costs and employment documents may be central instead.

Section 273 ZPO may allow the court to estimate the amount where entitlement to compensation is established but proof of the amount would be impossible or disproportionately difficult. It does not automatically replace accounting where the relevant figures are first held by the other side.

A settlement under section 1380 ABGB can connect information, later payment and final release. Section 1389 ABGB requires the scope to be read in the context of the dispute. The wording should therefore state which records are still due, which heads are settled and whether later loss or further claims are reserved.

A common error is choosing a staged action too early as a general investigation tool. An information gap alone is not enough. It is also problematic to provide figures without supporting records where the legal basis requires an account that can be checked.

Another error is failing to coordinate the action with limitation. The limitation check helps record knowledge, loss, wrongdoer, requests, acknowledgements and court steps in one timeline. A letter or negotiation does not automatically operate like a properly continued action.

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