Does the COVID-19 epidemic constitute force majeure interrupting the running of time limits on all claims? This is a vital issue for persons for whom time limits are expiring before entry into force of the planned statutory suspension of limitations periods.
Epidemic as force majeure
Although Polish regulations (substantive and procedural) do not contain a legal definition of force majeure, it is commonly recognised to mean an extraordinary (unforeseeable), external event whose consequences could not be prevented.
Examples of force majeure given in the legal literature and court decisions include the action of forces of nature (floods, earthquakes, hurricanes, forest fires), terrorist attacks, wars, acts of public authority, and social or political phenomena on a catastrophic scale.
The notion of force majeure has been developed in particular in contract law as a cause justifying non-performance or improper performance of an obligation. Concepts in this respect are also applied to determine when force majeure exists as a condition for suspension of the running of time limits.
As pointed out by the Lublin Court of Appeal in its judgment of 19 November 2019 (case no. III APa 15/19), an event can be regarded as force majeure only if:
- It is external (occurring outside the structures of an enterprise)
- It is unforeseeable (an extraordinary and sudden event), and
- Its consequences cannot be prevented (an overwhelming event that cannot be opposed).
Thus, can the coronavirus epidemic and its consequences in the form of actions by state authority be regarded as force majeure?
Force majeure and judicial proceedings
Under Art. 121(4) of the Polish Civil Code, force majeure interrupts the running of time limits on all claims, if due to force majeure the claimant cannot pursue its claims before the court or other authority appointed to consider cases of the given type, for the duration of the impediment.
Thus this has to do with a situation where an entity has objective difficulty exercising any means of interrupting the running of the limitations period and thus effectively pursuing its rights before the court. But even though the current situation is greatly limiting the operation of the courts, it does not appear to prevent parties from taking action to pursue their rights, as they can still file claims via the postal service.
But if the court before which litigation is pending has ceased all operations as a result of force majeure (e.g. is completely closed due to quarantine, as in the case of the district courts in Biłgoraj and Janów Lubelski), proceedings pending before such court are stayed by operation of law (Civil Procedure Code Art. 173). This also suspends the running of all time limits. Statutory time limits begin to run from the beginning upon taking up of the proceeding. Judicial time limits (i.e. those set by the court) should in this case be reset.
So what if a party to a proceeding has not filed a pleading within the designated period, but cannot rely on force majeure? In that situation, the party may apply for extension of the period set by the court or for reinstatement of the statutory period. For this purpose, it must be shown that the party was not at fault in failing to comply with the time limit (Civil Procedure Code Art. 168 and 169). An application to reinstate the time limit is filed with the court before which the action was to have been taken, within one week after the cause for missing the deadline ceases. The reason why the party failed to meet the deadline must be indicated in the application.
But it is not sufficient merely to rely on the state of epidemic. The reason must directly impact the party’s ability to take action. For example, the situation can be imagined where a party cannot gather essential information or documents due to restrictions on movement or closing of certain institutions, or cannot dispatch a pleading because of a mandatory quarantine. Reinstatement of the time limit will depend on an objective and exhaustive explanation and demonstration that the party was not at fault in failing to meet the deadline.
Planned statutory suspension of time limits
The Ministry of Justice has recently drafted an amendment to the Anti-Crisis Act (Act on Special Solutions for Preventing, Counteracting and Combating COVID-19, Other Infectious Diseases and Crises Caused by Them) and other acts, introducing, among other things, changes in the running of time limits in civil procedure.
The draft amendment regulates the running of procedural and substantive time limits, shaping certain legal relationships during the period when a state of epidemiological threat or state of epidemic due to COVID-19 is in force.
The bill provides inter alia that time limits set forth in provisions of administrative law will not begin to run, and periods that have begun to run will be suspended (initially, the draft also provided for suspension of time limits under civil law). This applies to:
- Time limits compliance with which is a condition for obtaining legal protection before a court or other authority, as well as time limits for a party to take actions shaping the rights and obligations of that party or the other party of a legal relationship
- Time limits for prescription or time-bar, and other time limits for which failure to comply with the time limit causes expiration or change in property rights or claims and receivables arising out civil-law relations, or falling into default
- Strict time limits, non-compliance with which entails negative consequences for a party pursuant to statute
- For entities or organisational units subject to entry of actions in the relevant register, time limits for actions required to be filed with the register, as well as time limits for performance by such entities of obligations arising out of regulations governing their systems of operation.
Judicial and procedural time limits in judicial proceedings, administrative court proceedings, administrative proceedings, criminal proceedings, and execution proceedings are also subject to suspension. It should be pointed out in this respect that both procedural and substantive legal actions taken with the aim of exercising an entitlement or performing an obligation during the period when commencement or running of a time limit is suspended are effective.
The bill also indicates that during the period of a state of epidemic, hearings and open sessions shall not be held, except for urgent matters, among which are mentioned inter alia criminal matters concerning temporary arrest, in which detention is applied, and family matters such as placement or extension of stay of a minor in a children’s shelter (the list of urgent matters is set forth in Art. 14a(4)–(5) of the bill).
Legislative work on the bill is currently underway. The act will enter into force the day after publication.
In a crisis, the situation of parties to disputed matters needs to be regulated (both at the stage of judicial proceedings and before proceedings are commenced). But until the solutions proposed by the drafters enter into force, it is necessary to comply with the regulations currently in force, which also provide for solutions applicable in crises such as an epidemic.
It should nonetheless be pointed out that in such instances, the court will examine each case individually. Setting aside the negative effects of failure to assert a claim by the appropriate time, and in consequence the claim becoming time-barred, as well as failure to comply with statutory or judicial time limits, will depend on the circumstances of the specific case.
Karolina Kozłowska, Aleksandra Połatyńska, Dispute Resolution & Arbitration practice, Wardyński & Partners