How to determine whether judicial proceedings are overlengthy? How to pursue damages if overlengthy proceedings cause injury?
The speed of judicial proceedings as an element of the constitutional right to a fair trial should be the standard for legal protection granted to citizens. In particular, the Polish Constitution and international law impose on the courts a duty to counteract overlengthy proceedings. But in practice litigation often drags out. Most often, apart from cases that are particularly difficult or complex, this results from the excessive caseload of the courts or unscrupulous practices by litigants exploiting the lack of regulations in Polish civil procedure governing abuse of process. Not every lengthy case can be regarded as overlong or giving rise to liability on the part of the State Treasury.
For obvious reasons, the parliament has not set time limits which would automatically make a case overlong if they were crossed. The variety and case-by-case nature of litigation make it necessary to consult the legal literature and the case law to achieve an understanding of overlengthiness of proceedings and identify instances where it occurs.
Allegation of overlengthiness
For example, the Supreme Court of Poland found overlengthiness in the failure by an appellate court to conduct a supplementary evidentiary proceeding and issue a judgment reforming the judgment at the first instance. In that case, the judgment at the first instance was not corrected, but was set aside and the case remanded for reconsideration (Supreme Court order of 29 November 2004, Case III SSP 48/04, OSNP 2005 no. 5 item 75).
It is also accepted that the evaluation of the timeliness and correctness of the proceeding should also reflect the length of interruptions between scheduled hearings, defective organisation of hearings, scheduling of hearing dates, long unjustified breaks between trial activities, and the reasonableness of the specific actions taken (Poznań Court of Appeal order of 30 January 2014, Case III S 1/14, Lex no. 1441464).
Under the dominant view, when lengthiness of proceedings is caused by the behaviour of the parties or other persons the court is not responsible for, the liability of the State Treasury can be excluded if the court imposes disciplinary or remedial measures aimed at concluding the matter as quickly as possible (Łódź Court of Appeal judgment of 27 May 2013, Case I ACa 36/13, Lex no. 1327563). Thus the court cannot be blamed for overlengthy proceedings if the course of the proceedings is interrupted for example by the parties’ failure to appear, deliberate filing of pleadings with formal defects, or numerous groundless applications and interlocutory appeals which the court must consider instead of focusing on hearing the merits of the principal claim.
Complaint for delay and damages under general rules
An instrument protecting against overly long proceedings is a complaint for violation of the party’s right to consideration of the case without undue delay (under the Excessive Length of Proceedings Act of 17 June 2004—full title the Act on the Complaint for Breach of a Party’s Right to Have a Case Examined in an Investigation Conducted or Supervised by a Prosecutor and in Judicial Proceedings without Undue Delay). It is also possible to pursue damages from the State Treasury under general rules (Civil Code Art. 417). Only unjustified delay in considering the case by the court will be deemed to be unlawful behaviour giving rise to liability of the State Treasury for the resulting injury. Under the Excessive Length of Proceedings Act, a proceeding is regarded as overlengthy in particular if it lasts longer than necessary to clarify the factual and legal circumstances relevant for resolution of the case. This definition may also be relevant in claims for damages for delay under general rules.
A basic limitation on this type of complaint is that it covers only pending proceedings, with fixed limits for the State Treasury’s liability (from PLN 2,000 to 20,000). The amount to be awarded is determined in particular by the intensity and seriousness of the circumstances demonstrating the violation of the party’s right to resolution of the case before the court without undue delay, the importance of the case for the petitioner, and the extent of the suffering caused by the violation. Any actions by the petitioner contributing to the length of the proceedings are also considered.
The nature of the award made under this act is not uniformly characterised in the legal literature. The prevailing view is that it is not damages in the strict sense. The statute governing this type of complaint provides for certain simplifications as compared to the general rules for pursuing damages (the obligation to issue a ruling on the complaint within two months from filing, the lack of a requirement to prove injury, and the low filing fee of PLN 200). But the amount awarded under such a complaint may not always satisfy all the claims that may arise as a result of the delay. The procedure for filing such a complaint can be followed up by assertion of a claim for damages. Then the finding of delay in the complaint procedure will be binding in the case seeking damages.
However, the party’s failure to pursue a complaint of this type does not foreclose the path to seeking damages under general rules. After the principal proceeding reaches a legally final conclusion, the party may sue the State Treasury for damages for delay without first filing a complaint under the special procedure. Then the bounds of the state’s liability for damages will be determined by the adequate causal connection between the unlawful exercise of public authority and the injury suffered by the plaintiff. That proceeding will no longer be aimed at combating delay in the proceedings as such, but at redressing the injury caused by the delay.
Injury can consist of financial detriment or lost benefits. The case law to date does not provide a thorough answer to the question of what specific claims may be pursued against the State Treasury. It would appear warranted for example for the defendant in the principal case to seek reimbursement from the state for the interest it had to pay the plaintiff, accrued over the period in which the proceeding was unduly delayed, if the dispute was complex and the state of uncertainty as to whether the defendant had an obligation to pay could be removed only by the court. Another form of damages could be the returns foregone by the plaintiff in the principal case as a result of the delay, which it could realistically have earned on the amount awarded in the principal case if the case had been decided within a reasonable time. The injury in such situations could also arise from the worsening financial situation of the party while awaiting a favourable resolution of the drawn-out court case. A claim could also be made for redress of injury caused by the unreasonably long proceedings for example in a situation where the party’s reputation suffered as a result of the delay, before ultimately prevailing in the litigation (loss of confidence in the party, or injury to its image, caused by the public’s belief that the party was responsible for civil claims, or for criminal acts in a criminal proceeding).
Thus the claims that may be asserted by parties suffering an injury due to overly long proceedings need not be limited to the amounts that can be awarded in a proceeding pursuant to a complaint for excessive length of proceedings. Complete recompense for the negative consequences of delay is possible, and such proceedings can help curb excesses by the justice system. Often the course of proceedings is beyond the parties’ control, and if the case is not handled expeditiously it can have a strong impact, financial or otherwise, on the participants.
Agata Jóźwiak, Dispute Resolution & Arbitration practice, Wardyński & Partners