Dr Marcin Lemkowski: Under the revised procedure, more things will be left up to the judge | In Principle

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Dr Marcin Lemkowski: Under the revised procedure, more things will be left up to the judge

Litigation Portal: What truly important changes in civil procedure in Poland were made in May?

Marcin Lemkowski: Clearly, the most important change is elimination of the separate procedure in commercial cases. These provisions did not work out in practice. They contained too many restrictions hampering the parties and the court in their efforts to achieve a comprehensive resolution of the dispute. Certainly this was the case with the prohibition against amending the claims, asserting a setoff, or filing counterclaims. This model lost sight of the principle that procedure should be secondary to substantive law. As a result, the courts, up to and including the Supreme Court of Poland, were absorbed in various procedural debates and complexities which typically did not generate any measurable benefit to the parties.

Another major change is elimination of the system of preclusion, instead imposing on the parties an obligation to support the proceedings by asserting their allegations and evidence in a systematic fashion. The new approach is more flexible, and much will depend on the skill of the judge handling the case and his or her ability to manage the dispute in a creative manner.

Finally, there are certain new avenues of appeal, such as an interlocutory appeal to the Supreme Court against a decision on appeal vacating the judgment and remanding the case, as well as the ability to file appeals directly with the court of second instance.

Why is so much left up to the judge in the new system?

For one reason, the previous approach required the court to ignore an allegation if the party failed to raise it at a specific stage of the proceedings—as decided by the Parliament, not the court. Now the court will admit new evidence or consider an allegation so long as it would not delay the proceedings, or if the party was not at fault in failing to raise the matter earlier, or there are other exceptional circumstances. Obviously, this gives the courts more latitude. The case law will clarify how to interpret these concepts. For example, the courts may find that admission of new documentary evidence generally does not cause delay, and it may become the rule that new evidence may be submitted in this form at any time before the case is closed. The judge will also set the rules for circulation of filings, which should help bring order to the proceedings.

Didn’t the old system give this authority to the judge in the case of papers filed with the court?

Yes, but the courts rarely exercised this authority. The former Art. 207 §2 of the Civil Procedure Code permitted the presiding judge of the court to issue a case management order requiring the exchange of preparatory pleadings before hearings were held in the case, and establishing the schedule for exchange of pleadings, the deadlines by which each pleading must be filed, and the factual circumstances that required clarification. But in practice this was a dead letter. Unfortunately, the courts do not communicate with the parties, or indicate to them during the course of the proceedings which facts are in dispute, and as a result the judgment in the case or the justification sometimes comes as a complete surprise to both parties. Ideally, a trial should be a dialogue between the parties and the court, not a monologue by the lawyers.

The new regulations also provide for a fairly rigorous sanction, in the form of rejection of a pleading filed in violation of the schedule set by the court. This will certainly bring order to the proceedings, but it may also prolong the proceedings by generating more extended oral argument by the lawyers. Nonetheless, if a party requests permission to file another pleading, I do not believe the court would refuse. After all, the reason for filing pleadings is to help the court resolve the dispute by providing additional arguments, case law, or commentary from the literature.

It is not always possible to capture everything important in the initial pleadings, particularly in complex litigation. But if the courts expect that, the lawyers will adjust accordingly. However, if that means that a 10-page statement of claim will have to stretch out to 50 pages, I doubt that anyone would consider that desirable.

How will the changes affect the case resolution time?

In my view they will have no effect whatsoever. The speed of the proceedings is not determined by the regulations or the parties but by the judges. Unfortunately, there are cases on the docket every day that drag on too long. Far too often the first hearing in the case is limited to an announcement by the court of the evidence that should be presented at the next hearing—typically several months in the future.

Decisions on how evidence will be taken should be made in closed session and communicated to the parties in advance, so that they do not have to guess what the judge plans to do at the hearing. If there are numerous witnesses to be heard, a good practice followed by some courts is to schedule the hearings for consecutive days, which makes it easier for the judge and the lawyers to prepare for the hearings.

The new regulations allow the judge to impose discipline on the parties, including those appearing without counsel. Thus the responsibility for conducting the trial efficiently generally rests on the court.

Are there any weaknesses in the new rules?

As these new regulations are just going into effect, it is more important to identify their strengths than their weaknesses. There are many strengths. Weaknesses may be revealed, but for now I do not perceive them. It is true that many doubts about the new rules—some very specific—have already been raised by commentators. None of them dispels my overall assessment of the amendments as a very positive change.

It is too bad that the system for availability of cassation appeals was not revised as well on this occasion, because the current solutions in this respect are unacceptable. In cases of great importance to the parties, even based solely on the amount in dispute, a cassation appeal should be available without any additional requirements. This would clearly have a positive effect on the jurisprudence, and procedures would become more predictable. Now, when drafting a cassation appeal, no matter how well it is argued there is no guarantee that it will be accepted for consideration.