Court decisions around the topic of detectives:

••• In general

Detective fees are recoverable costs, if the findings supplied by the assigned detectives were necessary, according to the circumstances of the individual case and if there was no possibility to obtain them in an other way by other means, which is to be proven by presenting the investigation report and the specific invoice. The detective’s findings immediately related the proceeding should also influence the legal position in favour of the client OLG Munich 18th June 1993, 11 W 1592/95 (OLG = Oberlandesgericht = “Higher Regional Court”).

Involving an investigator is justified from the court costs point of view, if there is already a certain suspicion, the necessary details and evidences, however, still having to be provided and if this is not possible in another way and may not be procured in a cheaper way than by means of a detective. The resulting costs are recoverable in accordance with § 91 ZPO, if the expenditure is immediately connected to the prospective legal proceedings. OLG Hamm, 31st August 1992 W 92 / 92.

Detective costs prior to any legal proceeding are recoverable, if engaging a detective is immediately connected to a specific litigation and if engaging a detective was necessary in the objective view of the party to aim for a litigation – with regard to an appropriate court OLG Koblenz, 24th October 1990, 14 NW 671/90.

Detective costs are to be reimbursed by the opposing party, if the expenses are in a reasonable relation to the importance of the subject matter of proceedings, if they were connected to the proceeding, if the findings striven for could be considered to be necessary and if a simpler clarification was not possible. In particular, remote resident insurance companies, are allowed in case of very high claims of damages sustained on account of pain and suffering, also acting in the interest of the insured party, to engage an investigator for clarification of the case. These expenses are to be reimbursed to an adequate amount by the opposing party. OLG Nürnberg AZ: 4 W 3657/90.

Detective fees are recoverable costs within the context of their being necessary, as long as they concern the proceeding (employment appeals tribunal Düsseldorf, 4th April 1995, 7 Ta242/94 (§ Ca 3728/92, ArbG Wesel) (ArbG = Arbeitsgericht = “industrial tribunal”).

Detective costs are also privately tax-deductible, if there is a specific suspicion (AG Hessen 8 K 3370).

••• Employment law

If the engagement of a detective agency does obviously serve to find out about facts and situational context in order to verify anti-competitive behaviour and in order to seek a temporary injunction based on that, involving a detective agency is adequate and even necessary for the preparation of proceedings (§ 91 ZPO). To be in a position to verify a behaviour said to be detrimental to competition, a full-day participation of the investigator in PR trips to one of the new federal states (former East Germany) might be necessary. OLG Koblenz, 14th May 1991 W 268/91.

Building a house whilst being on sick leave authorizes the superior to give notice. Whoever accomplishes building and transport works during sick leave instead of recuperating may be dismissed according to the agreed period of notice by his employer. If the employee only pretended to be sick, the employer is even authorized to dismiss the person without notice. LAG Hamm 28th August 1991 – 15 SA (LAG = Landesarbeitsgericht = “employment appeals tribunal”).

Salesmen may be tested by detectives. Salesmen may be controlled at their work place through test purchases execute by detectives without prior agreement of the work council. For example: A business gave an order to private investigators to verify by means of test purchases how personnel behaves in front of the customer and whether the cashiers key in the correct prices. The work council for business took legal action against this judgement: such kind of orders directed to security agencies are not subject to the approval or the participation in decision-making of a work council and as a consequence, they are inadmissible. BAG Erfurt, 13th March 2001, 1 ABR 34/00 (BAG = Bundesarbeitsgericht = “Federal Labour Court”)

Test purchases suffice as evidence. (AG Kaiserslautern 5 CA 119/84)

Concealed video surveillance is admissible, where merchandise losses were sustained and if making use of hidden cameras offers the chance to establish the culprit’s identity. (BAG 5 AZR 116/86)

Observations from the staff do not need to be reported to the work council by the management. (Ratification 26th March 1991 BAG 1 ABR 26/90)

••• Family right

In maintenance proceedings, detective costs are considered to be a necessary expenditure for the appropriate safeguard of rights, when persons entitled to maintenance conceal their earned income and an investigator finds out about their workplace and if the findings supplied have an influence in favour of the legal position of the person liable to provide maintenance in the proceedings. OLG Schleswig, 10th February 1992, 15 WF 218/91.

Detective costs serving to find out a severe inappropriate behaviour, which no evidence could be provided otherwise, may be recoverable in the proceedings in case of separation maintenance. OLG Stuttgart, 15th March 1989, 8 WF 96/88

Ex-partner has to pay for the investigator. If an ex-partner engages a detective to investigate the opposing party, the first mentioned is entitled to claim the detective fees from the latter. For example: Birgit M. was really annoyed. Her ex didn’t want to pay maintenance. He pretended living on the income support, as he said. He drove, however, a really expensive car. Birgit did not believe that he was in regular employment. But she could imagine him earning his cash though being self-employed, that’s what she thought. But how could she prove it ? Birgit engaged a detective. Quickly he found out that the ex was in no way penniless but that he was indeed in a position to pay. And pretty soon he did so. After all he would have to face prison because of income support fraud. Birgit did, however, not only want to claim back the maintenance but also the detective fees (approximately two thousand five hundred euros) and she took legal action. She finally got justice through the judges of the OLG Zweibrücken. OLG Zweibrücken, 14th February 2001, 6 WF 117/00.

A mother having been granted custody of their children, after separation from her husband, is also entitled to involve investigators, if the father refuses to return the children and keeps them hidden. The father also has to carry the detective costs. BHG Karlsruhe, 24th April 1990, VI ZR 110789 (BHG = Bundesgerichtshof = “Federal Supreme Court of justice”.