Technical improvements in procedure | In Principle

The amendment of the Civil Procedure Code introduces a few technical improvements to increase the efficiency of proceedings.

The key new tools for parties and their counsel include:

• The possibility of making sound recordings of hearings (or other court activities)
• Electronic service of documents between attorneys
• Clarifying the requirements for pleadings
• Changes in the form of filing auxiliary intervention
• Objections to the record no later than the next session
• Expansion of the list of proceedings eligible for horizontal review.

Some of the notable new tools at judges’ disposal include:

• Actions by the court to prepare the case for consideration (discussed in the article “New litigation management tools for judges”)
• Judicial guidelines
• Issuing of orders in camera and the possibility of not preparing a justification for certain types of orders
• Changes in the announcement, service and justification for judgments
• Introduction of standard form instructions.

Recording sessions

According to the amendment, the court will no longer have to consent to recording of court sessions (and other judicial activities) using audio devices (Art. 9¹ of the Civil Procedure Code). It will suffice for the party to notify the court of this intention, and the court may prohibit recording only when the session is held behind closed doors or when dictated for the sake of proper proceedings. This will allow parties and attorneys immediate access to the recording of the hearing, without waiting for the minutes or recording from the court, which typically are posted on the courts’ websites with some delay. Some doubts are raised by the possibility for the court to oppose recording of sessions and other activities for the sake of proper proceedings. It is not clear whether the court must justify such a decision (not to mention whether it is appealable), nor the types of situations justifying a ban on recording.

Electronic service between attorneys

Professional attorneys will be able to exchange pleadings during the course of the proceeding exclusively in electronic form (Art. 132 §3 of the code).

This solution has been applied for years in arbitration, where moreover pleadings are served electronically on the court as well, but the new Art. 130 §1³ does not provide for that possibility. In our view, this will limit the actual use of this method of service by attorneys.

Clarifying the requirements for pleadings

The obligation to specify in pleadings which factual issues the party admits and which it denies may prove to be a major change (Art. 127, as amended). There is also an express new requirement to include a list of enclosures with pleadings (Art. 126).

Under the amendment, if a pleading filed by a professional attorney cannot be processed because it fails to comply with formal requirements, the pleading will be returned without a summons to cure the defects in the pleading (Art. 130^1a). A corrected pleading can then be filed within one week after service of the order rejecting the pleading, in which case the corrected pleading will be deemed effective from the original date of filing. However, this effect will not occur in the case of a further rejection of the pleading, unless it is returned due to defects not previously indicated. As a new §1¹ has been added to Art. 126 expressly requiring a list of enclosures, it should be recognised that absence or incompleteness of the enclosures will be grounds for ordering the rejection of the pleading.

The obligation to admit or deny factual issues and to address the allegations and evidence presented by the adversary will consolidate the structure of pleadings, but also, in our view, increase their length. Given the wording of Art. 127 §1 of the code, it appears that this duty does not apply to the response to a statement of claim, which is reasonable, because if the court provides the defendant 14 days to respond to the statement of claim, addressing factual issues, allegations and evidence presented in the statement of claim could be very difficult for the defendant. But if the court does not order the exchange of pleadings before drawing up a plan for the hearings, the parties must be prepared during the preliminary session (Art. 205¹ ff.) to specify, among other things, which factual issues are disputed between them.

Moreover, a party will have a minimum of three months to cure formal defects in a pleading, to pay the filing fee, or to pay an advance against expenses, if the summons to cure such defects is served outside the European Union.

Change in the form of filing auxiliary intervention

The amendment also introduces a requirement to file an auxiliary intervention on one side of the case in the form of a pleading, which should be subject as relevant to the regulations on curing formal defects, and rejection of the pleading if the intervenor does not demonstrate in the pleading a legal interest in the dispute and indicate the party it is joining in the proceeding. Objection to joining of the case by an intervenor may be raised within 14 days of service of the intervenor’s application to join the case, but no later than commencement of the next session in the case. This means that the period for objecting to intervention may turn out to be shorter than two weeks. Unlike previously, the court will not necessarily have to consider the objection to intervention at a hearing, but may rule on the objection in closed session. This rule should expedite the consideration of applications to intervene in civil proceedings.

Objection to the record no later than the next session

Objections to the minutes may be raised no later than the next session in the case, also if the objections involve infringements during the course of the session at which the party appeared (amended Art. 162 §1). As the period for asserting objections has been extended, it should be expected that the objection will require justification and a precise identification of the procedural regulations allegedly violated by the court.

Expansion of the list of orders eligible for horizontal review

A significant change is the expansion of the list of orders eligible for “horizontaI review” (Art. 394^1a), and thus limitation of the list of orders by the court of first instance, and orders by the court’s presiding judge, which are eligible for an interlocutory appeal to the court of second instance. Horizontal review is now the general rule in execution proceedings.

The use of horizontal review for a ruling on relief from court costs and on the right to appointed counsel may raise concerns, because these are decisions on fundamental procedural rights of the parties, and therefore should be ruled on by a court of higher instance. In the proceeding instigated as a result of an interlocutory appeal, the court shall provide a justification, at its own initiative, of an order ending the proceeding. In cases where the interlocutory appeal is denied, or the order appealed against is modified, a written justification of the order will be prepared only if the party asserts, and pays for, an application for service of the order with a justification (Art. 397 §2).

Introduction of “judicial guidelines”

When there is a need, judges will be able to communicate to the parties how they view the case at any stage in the proceeding, without prejudging the result. This should speed up the resolution of cases. Under the new Art. 205¹³ of the code, the judge presiding at the session may instruct the parties on the likely result of the case in light of the allegations and evidence presented so far. In our view, this should encourage the parties to settle more often. Such instructions may be shared at any session.

Moreover, if it turns out during a session that the court may decide on a party’s demand or application on a legal basis different from the one indicated by the party, the court shall warn the parties present at the session accordingly (Art. 205¹⁴). Previously this requirement was recognised in the case law, but now it has been expressly stated in the regulations. As we understand, if the court indicates such a different potential ground for a ruling, but that would require supplementary evidence (and this occurs after the preliminary session and approval of the hearing plan), the court will be able to admit such evidence on the assumption that the need to rely on the evidence arose later.

Issuance of orders in camera and elimination of the need to issue a justification for certain orders

It will be possible for any order by the court to be issued in closed session (in camera). Consequently, the special regulations vesting the court with this right are repealed.

The court will issue a justification for an order issued in camera only when the order is appealable and only at the request of a party asserted within one week after service of the order (Art. 357 §§ 2 and 2¹), with the exception of execution proceedings, where the court will be required to issue a justification at its own initiative. A consequence of this change is that it will reduce the transparency of proceedings. However, for the sake of the proceeding, the amendment does authorise the judge to state the fundamental grounds for a ruling with respect to an unappealable order.

Announcement, service and justification of judgments

Under the amendment, the judgment in the case should be announced at the session at which the hearing is closed, but may be postponed for no longer than two weeks after the closing of the hearing. Nonetheless, if the case is particularly complex, the evidence is particularly extensive, or the court is greatly burdened by activities in other cases, this period may, as an exception, be extended as long as one month after the closing of the hearing (Art. 326 §1). Under the amendment, an application for service of a ruling or order with a justification will be subject to a fixed fee of PLN 100.

A judgment issued in closed session shall be served on both parties, at the court’s own initiative (Art. 327 §3). A requirement has been added in Art. 327¹ §2 that the justification for a judgment should be “concise.” It seems that this provision should also include an obligation to address the parties’ demands in the justification, but generally the change eliminating the descriptive portion of the judgment—typically the lengthiest section—should be assessed positively.

The amendment also introduces a requirement to expressly indicate the scope of the justification in the request for a justification. Failure to do so may result in rejection of the request. It is doubtful however whether the scope of the demand for the justification is connected with the scope of appeal against the judgment, or is a purely formal requirement.

Introduction of standard form instructions

The amendment provides for introduction of uniform patterns for the courts to instruct parties on their rights, which judges may use in the interest of parties not represented by professional attorneys. Significantly, a party not instructed in the manner provided for in Art. 458⁴ (as amended) is deemed to be deprived of the possibility of defending its rights, unless failure to provide the instruction did not affect the party’s behaviour in the course of the proceeding.

Summary

It will take some time before it can be determined whether the amendment actually improves and expedites proceedings in civil cases. The great formalism of the new regulations and the increase in court costs may be regarded as limiting parties’ right of access to the courts. Paradoxically, however, this would reduce the number of court cases, unburden the courts, and practically cut the duration of proceedings. We can only hope that the courts, now vested with great leeway in taking procedural decisions, will apply the new solutions to the benefit of the parties and without excessive formalism. In our view, the amendment has not eliminated all of the existing problems with civil proceedings in Poland, but does represent a certain point of departure for further changes.

Monika Hartung, adwokat, partner, Dispute Resolution & Arbitration practice, Wardyński & Partners

Dr Marta Kozłowska, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners