After the judgement is issued
How does a party defend against enforcement of an unfavourable judgment or court order? In what circumstances and within what timeframe is a cassation appeal considered? What can be done when the deadline for acting has already passed? When is a judgment enforceable?
How does a party defend against enforcement of an unfavourable judgment or court order?
The rule is that the parties can appeal any judgment issued at the first instance. In general, an appeal must be filed within 14 days from receipt of the judgment together with the written justification. As a result of entering an appeal, the case is considered by a court of higher instance. Appeals against district court judgments are considered by regional courts, and appeals against regional court judgments by the court of appeal.
A large number of other orders issued by the court of first instance can also be appealed, within 7 days of service together with the justification. However, to appeal an order rather than a judgment, there must be an express regulation allowing the appeal.
Another interim remedy is stay of enforcement. This is often treated as a means of securing a claim, but it has a slightly different character than other means of security. It relates to situations where enforcement of an order that can be or already has been challenged may cause irreparable injury to a party. It is a means of defence for the defendant in cases where the court decides on immediate enforceability of a non-final judgment.
Stay of enforcement can be also sought when the judgment is final but the defendant intends to file a cassation appeal.
Can a party recover costs of proceedings from the opponent?
The Civil Procedure Code establishes a rule of responsibility for the outcome of the proceedings, which means that the winning party is to be reimbursed for the costs of the proceedings (e.g. court fees and advances for court costs) in proportion to its success. The winning party may also demand reimbursement of attorneys’ fees. The court assesses costs on the basis of information supplied by the party. In the absence of such information, the court decides according to an official schedule of costs. Costs awarded to a party by the court cannot exceed the amounts provided in a regulation issued by the Minister of Justice, who controls rates of recoverable costs and attorneys’ fees. The cost order constitutes a part of the final judgment of the court.
In practice the courts always award costs according to the official schedule of costs, and therefore regardless of the information submitted a party will never recover more than PLN 43,200 as attorneys’ fees at each instance.
Other costs, including court fees, travel costs, translation costs, etc, can be recovered by the winning party in full. To this end, the party must submit a list of costs to the court.
In enforcement proceedings, costs are payable in arrears by the debtor.
Each party bears its own costs concerning security proceedings (e.g. the court fee for the application for security and the costs of enforcing injunctive relief). However, the winning party may apply to the court to award these costs in the judgment.
Who incurs costs during proceedings?
As a rule a party undertaking activities that require costs to be incurred (e.g. applying for appointment of an expert) is required to pay an advance against the costs to the court. If, on the other hand, the court acts on its own initiative in undertaking activities entailing costs, it will also determine which of the parties should pay the advance. The amount of the advance and the deadline for payment are fixed by the court. Usually the court will not take any action before the advance is paid in full.
How to appeal?
Litigation has two instances, which means that a party is given the opportunity to appeal an unfavourable judgment.
A party dissatisfied with a judgment can request a justification and service of a copy of the judgment with the justification within a week from the announcement of the judgment.
The appeal must be filed within two weeks from the date of service of the judgment with justification on the appellant.
The appeal is filed with the court that issued the judgment, which will forward it to the court of second instance. (Now, as a result of recent changes to the Civil Procedure Code, an appeal may also be filed directly with the court of second instance where it will be examined.) However, if the party did not request a justification of the judgment within a week of its announcement, the two-week deadline for filing an appeal begins to run on the date of the deadline to submit a request for a justification (and thus in total three weeks from the date the judgment is announced).
On what grounds should an appeal be based?
Generally, an appeal may be based on allegations of violation, incorrect application or incorrect interpretation of substantive law or procedural rules, as well as incorrectly establishing the facts of the case.
What happens in second-instance proceedings?
If the appeal is filed effectively (i.e. is not rejected for failure to cure formal defects or failure to pay the fee), the case is considered again in its entirety by the court of second instance. After considering the case the court of second instance may:
- Dismiss the appeal if it finds it groundless
- Amend the initial judgment as requested by the appellant
- If it finds that the proceedings were void, vacate the judgment and remand the case to the court of first instance for reconsideration
- If the statement of claim should have been dismissed or the proceedings should have been discontinued, vacate the judgment and dismiss the statement of claim or issue an order discontinuing the proceedings.
There is a general rule that the court cannot vacate a judgment and remand the case to the court of first instance for reconsideration unless the court of first instance failed to consider the merits of the case, or issuance of a judgment requires full evidentiary proceedings to be conducted.
It should be noted, however, that courts of second instance are reluctant to conduct evidentiary proceedings because in effect this deprives a party of one instance of review. This is because the judgment on appeal is legally final, and there is no appellate review of the court’s factual findings based on that evidence.
However, under a recent amendment which went into effect on 3 May 2012, the Civil Procedure Code now provides for the opportunity to file an interlocutory appeal to the Supreme Court of Poland against a judgment of the court of second instance vacating the judgment below and remanding the case for reconsideration. This represents a new feature of Polish civil procedure. Such interlocutory appeal is available to a party that is dissatisfied with remanding the case to the court of first instance for reconsideration.
In what circumstances and within what timeframe is a cassation appeal considered?
The right to file a cassation appeal with the Supreme Court of Poland against a final second-instance judgment is limited to cases in which the amount in dispute exceeds PLN 50,000 (or PLN 75,000 in commercial cases commenced prior to 3 May 2012). The case must also present a legal issue that requires clarification by the Supreme Court in order to avoid discrepancies in the case law. The latter requirement does not apply if the proceedings were void or if the allegations raised in the cassation appeal are clearly justified (e.g. an obvious violation of substantive law or procedural rules). A cassation appeal must be based on incorrect interpretation or application of substantive law, or violation of procedural provisions. In the case of a procedural violation, it must have had a significant influence on the outcome of the proceedings. The Supreme Court cannot review factual findings made by the lower courts.
In cases where filing a cassation appeal is permissible, and the party’s appeal at the second instance was denied, the party may demand that a justification for the final second-instance judgment be drafted and served on it. Such application may be made within seven days of issuance of the judgment. Then there is a two-month period to file a cassation appeal, which runs from service of the judgment of the court of second instance with the justification. Unlike in the case of an appeal from the first instance to the second instance, a party that did not request a justification cannot file a cassation appeal.
As a rule, a cassation appeal must be prepared by an adwokat or legal adviser.
Declaration of non-compliance with the law of a final judgment
The Supreme Court also considers actions for declaration that a final judgment does not comply with the law. Such action may be filed with the court that issued the judgment within two years of the date when it became final, but only if the applicant did not (for any reason) file a cassation appeal previously.
This extraordinary means of review may be filed against judgments of first- and second-instance courts. There are no limits as to the value of the claim.
When can proceedings be reopened?
An application to reopen proceedings may be filed under any of the following circumstances:
- The composition of the court at any stage of the proceedings was contrary to law, or a party was not properly represented or was deprived of the right to defend its interests.
- The judgment was based on a forged document or was issued as a result of a crime.
- New circumstances or means of evidence, unavailable before, have come to light.
- It was revealed that the case had been previously resolved.
- The legal basis of the decision was declared unconstitutional.
Any such action should be filed with the court that issued the judgment, within three months after the party learned of the grounds justifying the action, and in any event no later than five years after the judgment was issued (except for a situation where a party was not properly represented or was deprived of the right to defend its interests).
What can be done when the deadline for acting has already passed?
The time limits laid down by law cannot be exceeded. Appeals filed after the relevant deadline are rejected and the pleadings returned. In some cases, however, it is possible to request reinstatement of the deadline. An application must be filed within one week after the reason for failure to comply with the deadline ceased. In the application the party must substantiate its reasons for having been unable to comply with the deadline. At the same time the party must actually file the appeal or the pleading.
When is a judgment enforceable?
A judgment is enforceable if it is final or if the court grants it immediate enforceability.
When is a judgment final?
Judgments are final when they cannot be appealed. This includes all judgments of second-instance courts and judgments that were not appealed in time.
What does immediate enforceability of a judgment mean?
All default judgments and judgments issued in consequence of acknowledgment of the claim are immediately enforceable.
Moreover, the court may grant immediate enforceability to a judgment adjudicating receivables based on a bill of exchange, cheque, official document or private document if its authenticity was not questioned, and in the case of a claim concerning infringement of possession.
If a delay in enforcement could cause damage or would prevent or seriously hinder enforcement of a court decision, the court may declare that it is immediately enforceable on the application of the interested party.
What can be done when the losing party refuses to voluntarily comply with a judgment?
Any judgment may be enforced following endorsement by the court with an enforcement clause.
If the losing party refuses to comply with a court order voluntarily, the plaintiff may employ the assistance of a court enforcement officer—the bailiff—who can then carry out compulsory enforcement. In monetary claims, enforcement is conducted by means of seizure and sale of property. As far as specific performance is concerned, enforcement proceedings are conducted by the court, which has various means of persuasion at its disposal, for example fines. An amendment to the Civil Procedure Code that went into effect on 3 May 2012 also permits the debtor to be fined a specific amount for each day of delay in performance of the obligation.
What are the rules for recognition and enforcement of foreign judgments?
The Brussels I Regulation (44/2001) applies to the enforcement of judgments from other EU member states.
For judgments from other countries, special rules apply when reciprocal international agreements exist. If there is no such agreement, the court requests information from the Ministry of Justice on reciprocity with the country in question.
Under the Civil Procedure Code, a foreign judgment will be recognised and enforced on a reciprocal basis if all of the following conditions are met:
- It is final under the law of the country in which it was issued.
- The case was not subject to the exclusive jurisdiction of the Polish courts or the courts of a third country.
- A party was not denied the possibility of defending its rights or deprived of proper representation in the case of limited legal capacity.
- The case was not previously resolved before a Polish court and no proceedings were initiated before a Polish court before the foreign judgment became final.
- The judgment is not contrary to fundamental principles of Polish law.
- In cases where Polish law should have been applied, it was applied, unless the law applied did not differ significantly from Polish law.