Changes in civil procedure: High hopes, some difficulties
An overhaul of Polish civil procedure was published on 6 August 2019. The amending act partly entered into force on 21 August, but most of the new rules apply from 7 November. What can we say so far about the new rules, what should be expected, and what are the worries?
The Act of 4 July 2019 Amending the Civil Procedure Code and Certain Other Acts was published in this year’s Journal of Laws under item no. 1469. The changes introduced by the act are extensive. There are hundreds of changes, although many of them are purely technical or editorial. The aim of the amendment, according to the justification for the bill running to several hundred pages, is primarily to improve and expedite judicial proceedings in civil cases.
It’s true that court cases in Poland last very long. As practitioners, we deal with this every day. In every new case we must warn our clients that their longed-for judgment will not be handed down in a month, and probably not in one or two years. Thus any attempt to speed up the consideration of cases and cut certain formalities and activities taking up unnecessary time, which judges could devote to examining and deciding the merits of cases, should generally be greeted with approval.
Adages aside, sometimes a gift horse should be looked in the mouth. The new solutions require careful analysis, because efforts to speed up cases can affect the quality of the rulings. A judgment that is quick, but defective or unjust, has little to recommend it compared to a judgment that requires a longer wait but is fair and convincing.
Looking at the amended regulations, it should be pointed out that solutions in practically every section of the Civil Procedure Code have undergone some change. There are certain changes in the jurisdiction of the courts (e.g. in cases involving banking activity, which may have a big impact on the number of cases and the situation of both banks and their customers).
The way evidence is admitted by the courts will change. The amendment has introduced a hearing plan, as well as the possibility of submitting written witness statements, familiar from arbitration practice. This may be helpful and fast, but if open to abuse it could lead to a false picture of reality in some cases.
The separate commercial procedure, eliminated in 2012, has again been restored to the Civil Procedure Code, but in a different form (for example, it now covers disputes arising out of finance leasing agreements and construction contracts, regardless of whether the parties are businesses).
Certain changes have also appeared in the order for payment procedure (nakazowy) and summary procedure (upominawczy), and there are even changes in execution procedure.
The amendment has also introduced a number of changes in court costs (raising the maximum filing fee from PLN 100,000 to PLN 200,000, while fees for certain activities have jumped).
However, the amendment has also introduced new solutions arising from attention to comments by legal scholars, or designed to eliminate certain ambiguities or inconsistencies in the decisional practice of the courts.
The possibility of awarding interest for delay in payment of court costs has been introduced. Previously no sanctions were imposed for such delays, as confirmed consistently by rulings of the Supreme Court of Poland based on the procedural nature of claims for reimbursement of court costs. The new Art. 98 §11 of the Civil Procedure Code now permits interest to be awarded on such costs.
Another positive development is that the code will protect to a greater degree than before the principle that no one can be a judge in his own case. Thus if the State Treasury is a party to a case and the claim relates to the activity of the court itself, the higher court will transfer the case to another court of equal rank (Art. 442(1) of the code). In cases of this type, applications were often filed to recuse all of the judges of the defendant court, which were denied but unnecessarily prolonged the case by at least several months.
An obvious flaw in Art. 388 §1 has been eliminated. Under this provision, if a legally final ruling was challenged via a cassation appeal to the Supreme Court, a stay of enforcement of the ruling could not be issued until the cassation appeal was filed, which in practice meant several months after the legally final ruling was issued. Following the change, a stay can be sought immediately upon announcement of the judgment, thus offering fuller protection to litigants. Regrettably, however, some of the other defects in the stay procedure were not eliminated at the same time, such as the lack of justification for stay orders and the absence of appellate review of orders issued on applications under Art. 388 §1, at least in the form of a horizontal appeal, which the amendment introduced in several new instances.
The changes now introduced will probably remain in effect for at least the next few years. Just as the proof of the pudding is in the eating, regulations should be judged by how they function in practice. Although the amendments here raise some doubts, it will take some time before they can be fairly evaluated.
Dr Maciej Kiełbowski, adwokat, Administrative practice, Dispute Resolution & Arbitration practice, Wardyński & Partners
Dr Marcin Lemkowski, adwokat, partner, Dispute Resolution & Arbitration practice, Wardyński & Partners