In the course of a construction dispute, to prove certain facts the parties most often request the examination of evidence not only from documents, but also submit numerous requests to hear witness testimony. However, according to parliamentary findings, witness testimony tends to increase the length and cost of court proceedings, and also allows for procedural manipulations. Therefore, the parliament restricted the admissibility of witness testimony in commercial proceedings. This has had an impact on the day-to-day operations of companies.
The amendment to the Polish Civil Procedure Code which came into force in 2019 reinstated the separate procedure in commercial cases. The new rules apply to cases initiated on or after 7 November 2019.
Primacy of documentary evidence
The main objective of the reform was to streamline proceedings by identifying the causes for lengthiness of proceedings and introducing procedural solutions that would accelerate the resolution of commercial cases.
One source of delay identified by the proponents of the amendment was “lack of adequate documentation of the facts from which the parties derive their claims and allegations.” In turn, this leads to consideration of time-consuming evidence other than documents, including testimony by party or non-party witnesses.
This problem was to be solved by introducing the principle of the primacy of documentary evidence. According to this rule, to prove certain facts, the parties should first request the examination of documentary evidence. Therefore, witness testimony is now deemed ancillary, and subject to limitations under Art. 45810 of the Civil Procedure Code.
Art. 45810 was adopted despite doubts about this provision. At the beginning of 2019, the Bureau of Research of the Polish Parliament prepared a regulatory impact assessment which found that these solutions “may lead to limitation of the party’s right to defend its interests.” At that time, similar assessments were expressed in an opinion prepared by an external expert and included among the opinions of the Bureau of Research prepared for parliament paper no. 3137. As the opinion states, “Requiring businesses to make all declarations of will and knowledge in the form of a document, even if the substantive law does not provide for the form of a document for the validity of such a declaration, may be regarded as unequal treatment of businesses before the law.”
However, as indicated in the explanatory memorandum to the draft reform, in the proponent’s opinion, this requirement is not overbroad, as it is related to the professional nature of the activity conducted by the parties to commercial proceedings, which in turn requires them to maintain reliable documentation.
Evidence from witness testimony only ancillary
Pursuant to Art. 45810 of the Civil Procedure Code, the court may admit evidence from witness testimony only if after exhausting other means of evidence, or in the absence thereof, there remain unexplained facts relevant for resolution of the case. Therefore, the parties may still request the admission of witness testimony, but it is up to the court to assess whether there are grounds for admitting such evidence.
If a party submits a request to admit witness testimony, it must justify the request and show that the above condition has been met (M. Muliński in A. Góra-Błaszczykowska (ed.), Civil Procedure, Vol. I B, Commentary to Art. 425–729 (Warsaw 2020), commentary to Art. 45810, note 2).
Documents, protocols, photos, recordings…
When these rules are applied in the context of construction, these limitations on evidence in potential disputes force all participants of the construction process to document all activities, events and phenomena, so that later they could reliably prove certain facts in the course of a potential trial. As stated in the explanatory memorandum to the reform, “Technological progress has made it possible to document all facts in a virtually cost-free manner through all kinds of digital records, and civil procedure solutions make it possible to use such documentation basically without any restrictions.”
Bearing in mind the limitation on admitting witness testimony in commercial litigation, to an even greater extent than before, participants in the construction process must take care to collect documents, protocols, photographs or recordings documenting key activities and events in the course of construction.
Joanna Duda, Dispute Resolution & Arbitration practice, Wardyński & Partners