Interim relief more expensive than it may seem: Regulations to be amended | In Principle

From August 2019, the fee for an application for interim relief to secure a monetary claim (e.g. for payment of a specific sum of money) made before a legal action is brought to court has increased significantly. Instead of PLN 100, the fee is equal to one-fourth of the fee that would be payable in a suit on the claim (maximum PLN 50,000). Under certain conditions, the fee for an application for interim relief will be set off against the fee on the document instituting the principal proceeding (statement of claim). However, the provisions allowing for this possibility may give rise to problems of interpretation, and thus the need to incur additional costs.

Before the amendment, the court fee in Poland for an application for interim relief to secure monetary claims submitted before filing a document instituting the principal proceeding (statement of claim) was PLN 100. Parties to the court proceedings have often filed such a request, also in order to “test” the claim, for a low fee and with little risk, to survey the court’s position on the merits of the claim.

As a result of the amendment, the fee has been significantly increased and is currently one-fourth of the fee payable for a suit on the claim. As the maximum fee for a statement of claim is PLN 200,000, the fee for an application for interim relief can be as high as PLN 50,000. Compared to the previously applicable amount of PLN 100, the difference can be colossal.

The change in the regulations was intended to limit the number of applications for interim relief where the main purpose of the application was not to obtain judicial protection but only to discern the court’s position on the merits of the case.

Possibility of offsetting the fee for an application for interim relief against the fee for a statement of claim

To mitigate the effects of such a huge increase, under certain conditions the law makes it possible to credit the fee paid in the proceeding for interim relief against the fee for the statement of claim on the merits.

Under the current wording of Art. 69(2) of the Act on Court Fees in Civil Cases, it is possible to credit a court fee:

• If interim relief has been granted, when the statement of claim is lodged within the time limit prescribed for this purpose in the provisions on interim relief. This period should be set out by the court in the decision granting interim relief, but may not be longer than two weeks.
• In the case of denial of the application for interim relief, if a statement of claim is filed within two weeks from service of the decision denying the application (or if the decision is issued at a public hearing, two weeks from announcement of the decision).

The first case, i.e. when interim relief is granted, does not raise doubts of interpretation, but the second situation, i.e. denial of the application, may raise issues on the manner of calculating the two-week period for filing a statement of claim. In practice, an incorrect interpretation may mean the necessity to pay again a court fee as high as PLN 50,000.

Counting the time limit contrary to the concept of interim relief

It follows from the literal wording of the provision that the two-week period should be counted from the service on the claimant of the decision denying the application for interim relief (or announcement in an open hearing), and not from the time the decision becomes legally final. On the other hand, in accordance with the nature of proceedings for interim relief, it would be reasonable for the time limit to be counted from the time the decision becomes final.

A decision denying an application for interim relief is served only on the applicant, and without a justification. The applicant may then apply for a statement of reasons for the ruling and subsequently file an interlocutory appeal. Therefore, at this stage, the decision is not yet appealable, which means that the proceeding for interim relief has not been completed and the relief may still be granted as a result of an interlocutory appeal. Obviously, there is no hope of obtaining a final ruling on the interlocutory appeal within two weeks after service of the decision on the application for interim relief.

At this stage of the case, the respondent, against whom the relief would be granted, is not even aware that a proceeding seeking interim relief is pending. This is designed to protect the applicant, as a respondent who learns that legal steps are being taken against him may, for example, start disposing of or encumbering his assets.

Thus, forced by fiscal reasons, the filing of a statement of claim within two weeks from service of a decision denying an application for interim relief may mean that the statement of claim will be filed before completion of the proceeding on the application for interim relief. As a result, the respondent may learn of commencement of the proceeding seeking interim relief against him before that proceeding is finally resolved (i.e. the respondent may receive a copy of the statement of claim before the court rules on the interlocutory appeal against the decision denying interim relief, and enforcement of the interim relief).

This is contrary to the idea of proceedings for interim relief. For the fee on the application to be credited against the fee on the statement of claim, the claimant must bring a legal action before ultimately knowing whether he will be granted interim relief. This results in a warning shot to the respondent that the claimant is seeking legal protection in the form of interim relief.

Clarification of provisions necessary

For these reasons, it would be justified and expedient to amend the rules and expressly provide that the court fee on an application for interim relief may be credited against the court fee on the statement of claim if the claimant brings an action on the merits within two weeks after the decision denying the application for interim relief becomes final. Currently, as a procedural precaution, the time limit should be counted from service of the decision, which exposes the claimant to adverse effects and deprives him of the right to keep the initial stage of the proceeding seeking interim relief secret from the respondent.

A party making a purposive rather than a literal interpretation of the provisions runs the risk of losing the ability to credit the court fee, and thus significant financial consequences. The interest of the justice system requires elimination of situations in which differing interpretations of provisions are possible and, at the same time, differing treatment of persons asserting their rights in court.

Agata Jóźwiak, attorney-at-law, Dispute Resolution & Arbitration practice, Wardyński & Partners