| A court may reject PKH because the client is self-employed and should therefore have set aside reserves for possible court proceedings (LSG Hessen 29.11.22, L 1 BA 27/22 Bretrieval no. 235187). |
For the self-employed and tradespeople, the general ban on abuse of rights means that PKH can be refused in exceptional cases or a payment obligation can be imposed. They can be required to create financial reserves for foreseeable legal disputes, even if specific legal disputes are not yet foreseeable.
In addition, you must provide a credible and comprehensible explanation in your application as to why previously available substantial amounts of money are no longer available at the time of the PKH application. Any short-term expenses or investments for the business or company must not be unreasonable or implausible. The court can presume abuse of rights if a party knows about an upcoming lawsuit and reduces its assets through unreasonable expenditure.
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PRACTICAL TIP | Lawyers often overlook the fact that the court can apply strict criteria to the PKH examination and also take a close look if the self-employed applicant was last financially in good shape. You should point this out to your respective clients, especially if they actually made expenses that were not far in advance of the PKH application. You should be able to give the court conclusive reasons (e.g. necessary, long-term planned investments, favorable conditions for necessary purchases). |
(shared by Christian Noe BA, Göttingen)
Further note