Another overhaul to the Civil Procedure Code: Key provisions
The Polish parliament has voted to amend the Civil Procedure Code, introducing numerous changes primarily intended to speed up proceedings. On this occasion, the parliament decided to reinstate some solutions it had abandoned in recent years. Below we discuss the most important changes.
More cases for district courts—PLN 100,000 limit
Under the Act of 9 March 2023 Amending the Civil Procedure Code and Certain Other Acts, district courts (sądy rejonowe) in Poland will hear cases worth up to PLN 100,000. Under current law, proceedings in which the amount in dispute does not exceed PLN 75,000 are sent there. Presumably, this regulation is intended to relieve the burden on the regional courts (sądy okręgowe), where litigants wait very long for cases to be resolved.
Wider scope of legal representation
The basic scope of legal representation under Art. 91 of the code will change. A power of attorney ad litem will now extend to the filing of a cassation appeal and representation in cassation proceedings. Currently, these activities require a separate power of attorney.
Change in pleadings: It is easy to omit evidence
A major change for counsel will be the introduction of Art. 1281, pursuant to which a submission filed by a professional attorney should contain explicitly distinct allegations, claims and applications, including requests to admit evidence. If the filing contains a justification, requests for admission of evidence raised only in the justification will not exert the effect of a submission of evidence by a party.
This means that all evidence will have to be listed in detail in the prayer for relief of the pleading, along with the evidentiary theses. If evidence is cited only in the justification of the pleading (which has been the most common practice to date), the evidence will be disregarded. Thus, the regulation will significantly lengthen the pleadings and require counsel to meticulously list all evidence with theses (in some voluminous cases, there may be dozens or even hundreds of pieces of evidence to be described in detail).
No more weighing of pleadings
The parliament listened to demands from practitioners and voted to amend Art. 165 §2 of the code, which provides that dispatch of a pleading by registered mail is equivalent to filing the pleading with the court. The amendment will remove the requirement to send pleadings by registered mail. This is of great practical importance, as according to the rules of the Polish Post, registered mail can only weigh up to two kilogrammes. Sending a package weighing more than 2 kg by parcel and not registered mail could therefore delay the date when the pleading is deemed filed with the court (the date when the parcel is posted does not count, but the date on which it is received by the court, which could take place after the deadline imposed by statute or the court).
Parcels containing court pleadings with attachments are often heavier than 2 kg, which causes great difficulties for counsel. They have to divide them into several parcels (registered mail weighing up to 2 kg), send the pleading by parcel well in advance to meet the deadline, or submit the pleading in person at the court. The amendment will end these problems.
One settlement, several proceedings
The parliament has explicitly introduced the possibility of concluding a single settlement involving several different court proceedings, and facilitated the procedure in such cases (new Art. 18314 §21). In such a situation, actions related to approval of the settlement and granting of an enforcement clause will be handled by a single court (if not excluded by the provisions on subject-matter jurisdiction and exclusive jurisdiction).
Pursuant to the newly adopted provisions, “If a settlement concerns claims covered by various court proceedings, the parties shall list these proceedings in the settlement and indicate the court that will approve the settlement and confer upon it an enforcement clause. A copy of the order approving the settlement or giving the settlement an enforcement clause shall be delivered by the court to other courts listed in the settlement. A copy of the order approving the settlement or granting an enforcement clause to the settlement shall constitute the basis for discontinuing the proceedings insofar as they relate to the claims covered by the settlement.”
Completing the hearing in closed session
The amendment introduces the possibility of completing the hearing in a case in closed session (in camera) and issuing a judgment in closed session (new Art. 224 §3 and Art. 3261). If this contributes to more efficient hearing of the case and the scheduling of further hearings is unnecessary, the court will be empowered to complete the hearing in closed session. In such a situation, the parties should be warned of the possibility of completing the hearing and given the opportunity to address the court in a pleading within no less than 7 days. Thereafter, the court will complete the hearing within a month after the deadline for the parties to make their final submissions. Such an order can only be issued by the judges before whom the last public hearing immediately preceding completion of the trial was held. If the hearing is completed in closed session, the court shall issue a judgment at the same session.
This provision will apply for example in situations where the last hearing would be held solely for the parties to make their closing arguments. Now, the parties will instead have an opportunity to make their final case in writing. This solution can significantly speed up the completion of the case, as the wait for a hearing is currently prolonged (sometimes several months, or even a year or more).
Experts will be paid only after they correct their mistakes
The parliament recognised that in some cases the parties are forced to pay experts to correct their own written opinions and give them the proper form and quality. As a result of the amendment of Art. 288 §3, “If the opinion is not understandable, or has contradictions or significant deficiencies, the court may order that the award of fees and reimbursement of expenses be made after completion or clarification of the opinion. The court’s order is not subject to interlocutory appeal.”
This regulation should be evaluated positively, as in many situations the quality of opinions issued by expert witnesses is poor, yet the expert receives an additional fee for correcting his own opinion, which should not be the case. But the effectiveness of this regulation will depend primarily on the courts, which should insist on factual correctness and due diligence on the part of experts.
Proceedings involving consumers
The parliament has approved a separate procedure with the participation of consumers. In these proceedings, stricter preclusion will be imposed on the business party when it comes to invoking facts and evidence. A consumer will be able to bring proceedings before the court of his or her place of residence (except where there is exclusive jurisdiction elsewhere). Also, regardless of the outcome of the case, the business may be ordered to pay the costs of the proceedings if it abandoned attempts to resolve the dispute voluntarily before filing the case, avoided participation in settlement negotiations or participated in bad faith, and thus contributed to the unnecessary filing of the claim or defective determination of the matter in dispute.
Return to old solutions
The parliament has also decided to reinstate solutions it changed in previous amendments.
An interlocutory appeal against an order issued in interim proceedings will once again be heard by the court of second instance, rather than by a three-judge panel of the court of first instance.
The court will no longer notify the plaintiff of the order to serve a copy of the statement of claim on the defendant (Art. 205 1 §1).
Orders requiring a justification but issued in closed session will once again be served with a justification at the court’s own initiative (Art. 357 §22). Thus, the parties will not have to request the court to draft a justification for such orders and service upon them of a copy of the order along with the justification.
Agata Jóźwiak, attorney-at-law, Dispute Resolution & Arbitration practice, Wardyński & Partners
