Electronic service between attorneys, and the end of fictitious service. The amendment to the Civil Procedure Code has brought numerous changes to the service of legal documents.
We should first point to the interim provisions in Art. 14 of the amending act (Act of 4 July 2019 Amending the Civil Procedure Code and Certain Other Acts), which requires Art. 132 §1 of the Civil Procedure Code to be applied from 7 November 2019 in cases commenced and not completed before entry into force of the amending act. This means that when serving court papers between professional attorneys, a statement must be included on dispatch of a copy of the pleading by registered post with respect to all cases, and not, as before, only with respect to cases commenced after 8 September 2016.
The amendment added Art. 132 §13 to the Civil Procedure Code, enabling electronic service between professional attorneys in place of traditional service. But for electronic service to be effective, a statement on electronic service must be submitted, providing the attorney’s contact details to the court, including email address or fax number. It should be stressed that such statements are not revocable, and reservations of conditions or periods are deemed void. Upon mutual application of the parties, or in other justified instances, the court may order the parties not to use this form of service.
The wording of Art. 133 has also changed. Section 1 governs service on natural persons, and in the first order they should be served personally. Section 2 provides for service on legal persons or organisations without legal personality, with respect to which service is made personally upon an authorised employee or body. Section 21 governs service on businesses entered in the Central Registration and Information on Business (CEIDG), who are served at the address provided in the register unless the business operator has indicated another address for service. Section 22 in turn provides that pleadings and rulings are served on a business entered in the court register at the address provided in the register, unless the business has indicated another address for service. If the last available address has been deleted as inconsistent with the actual state of affairs and no application has been filed providing a new address, then the deleted address is regarded as the address provided in the register. Under Art. 133 §23, documents for persons representing entities entered in the National Court Register, liquidators, commercial proxies, members of corporate authorities, or persons authorised to appoint the management board, are served at the address for service designated according to Art. 19a(5)–(5b) and (5d) of the National Court Register Act of 20 August 1997. If an attorney ad litem has been appointed, or an agent for service, then papers are served on that person, except for a summons for a person to appear in person, which is served only directly on the party (Art. 133 §3 of the Civil Procedure Code). This rule does not apply, however, to a party without a place of residence or habitual abode in Poland or other EU member state.
The end of fictitious service
The most impactful changes for litigation practice in serving documents are introduced by the amended Art. 139 and the newly added Art. 1391 of the Civil Procedure Code.
Under Art. 139, when personal service as indicated in Art. 133 and substitute service under Art. 138 cannot be effected, the document is submitted to the post office and notice is placed on the door of the addressee’s home or in the addressee’s mailbox, indicating where and when the document was left, with an instruction that the document should be collected within 7 days after placement of the notice. If the document is not collected by that deadline, the operation should be repeated. The document may also be collected at the post office by a person authorised to collect postal items through a postal power of attorney within the meaning of the Postal Law.
Under prior law, after such notice was given twice, there was deemed to be fictitious service, which in practice meant that if a court paper (including the initial pleading in the case) was not collected within the designated time, the document was treated as effectively served. The new Art. 1391 departs from this rule by providing that if despite repeated notice the defendant has not collected the statement of clam or other pleading giving rise to a need to defend his rights, no pleading in the case has been served on him before in the manner described above, and neither Art. 139 §§2–31 nor other specific regulation providing for the effect of service is applicable, the presiding judge of the court will notify the plaintiff accordingly by sending the plaintiff a copy of the pleading for the defendant, obliging the plaintiff (in the form of an order) to serve the pleading on the defendant through the bailiff. The plaintiff then has two months from service of such order to file proof of service of the pleading on the defendant by the bailiff, or return of the pleading with an indication of the defendant’s current address or proof that the defendant is staying at the same address as that given in the statement of claim.
The law does not specify what evidence may be regarded as sufficient in this case, but it should be recognised that such evidence could be confirmation of receipt of other correspondence (such as courier items) at the existing address, a writing from the defendant indicating his residence address, or a detective’s report. Moreover, under the regulations on population records, upon demonstration of a legal interest it is possible to seek information about the defendant from the PESEL register. In order to satisfy the obligation imposed by the court, the plaintiff should apply to the bailiff to serve the pleading. The bailiff may not refuse to serve such documents, but may assign this duty to an assistant (asesor).
The sanction for the plaintiff’s failure to comply with this procedure is that the court will stay the proceeding under Art. 177 §1(6) of the Civil Procedure Code. The aim of the new method for service governed by Art. 1391 is to ensure a more effective right to a defence, as according to the lawmakers, previously addressees of court correspondence often did not learn that a ruling had been entered against them until they were notified of the commencement of execution. The procedure for service via the bailiff was introduced to eliminate situations where service was made to outdated addresses.
Agnieszka Pachla, Dispute Resolution & Arbitration practice, Wardyński & Partners