Evidence

Does all the evidence have to be presented at once? What evidence can be used? Taking evidence for foreign proceedings

Does all the evidence have to be presented at once?

Generally, there used to be no duty to present all evidence that a party has in its possession. However, in commercial proceedings the parties were required to present all allegations and evidence in their first pleading. Further evidence could be accepted by the court only if the party could not have presented it earlier, and only within two weeks after the new evidence became available to the party.

Now, pursuant to extensive changes in the Civil Procedure Code effective 3 May 2012, in order for a party to assure that it will be able to admit all necessary evidence, it should present the evidence in its first pleading in the case (the statement of claim or defence). If raised later, it may not be admitted. The court will ignore late allegations or evidence unless the party demonstrates that it was not at fault in failing to raise them in the statement of claim, defence or subsequent pleading, or that consideration of the late allegations or evidence will not delay consideration of the case, or there are other exceptional circumstances excusing the delay.

A party should prove all of its allegations, except for uncontested facts that are deemed proven.

What evidence can be used?

In general, the Civil Procedure Code recognises the following types of evidence: documents, witness statements, expert opinions, inspection by the court, and testimony. Additionally, any other means of proving facts material to the case may be accepted by the court if appropriate for that purpose.

Before commencing proceedings, a document or other evidence may be obtained by means of the procedure for securing evidence.

1. Documents

During the course of a proceeding, copies of documents may be filed with the court, but the other party or the court may demand presentation of the originals.

Polish law does not recognise pre-trial discovery. Even during the course of the proceedings the means of obtaining evidence from third parties or the other party are limited. The court may formally order the parties to disclose all documents and other evidence in their possession. However, in case of unjustified refusal, the court can only fine the refusing third party. The other party to proceedings cannot be forced by the court to submit evidence. The court may, however, take a party’s refusal to present evidence in its possession into consideration when reaching the judgment and construe this fact against the party that refused to submit evidence.

2. Witnesses

It is a general rule that witnesses testify only as to facts and never on their assessment of the facts. Therefore, only the testimony of persons who were directly involved in or direct witnesses to events and facts is relevant. The facts to be proved through a witness’s testimony must be relevant to the resolution of the dispute.

The Civil Procedure Code provides that certain persons are incompetent to testify as a witness in civil proceedings or are entitled to refuse to answer particular questions. Generally, the Civil Procedure Code excludes from being a witness:

  • Persons who cannot perceive or communicate their observations
  • Military personnel and other officials who have not been released from the obligation to maintain state secrecy, if their testimony would violate state secrecy
  • Persons heard as parties, including statutory representatives of parties and members of corporate authorities
  • Co-parties.

Mediators are also prohibited from testifying as to facts they learned of in connection with mediation proceedings, unless the parties release them from the duty to maintain the confidentiality of mediation.

Neither an adwokat nor a legal adviser may testify as a witness in connection with knowledge they have about a client’s affairs. They may be released by the court from the obligation to maintain client confidentiality, but only under circumstances strictly defined by law (this does not apply to the attorney-client privilege in criminal matters).

Certain relatives have a privilege not to testify against one another, limited to strictly enumerated family members (spouse, ancestors, descendants, siblings, and adoptive family members) and in-laws of a party. A witness may also refuse to answer a particular question if it could entail criminal liability, disgrace, or severe and direct financial loss to him or the members of his family, or if it could violate professional confidentiality. A witness is nonetheless compelled to appear in response to any summons from the court. The court may impose a fine on a witness in a case of unjustified absence, refusal to testify, or refusal to answer a question.

Witnesses testify orally. Before a witness begins testifying, he or she is instructed on the penalty for perjury. At the request of a party, the witness testifies under oath.

The substance of the witness testimony is summarised in the form of minutes or—with the introduction of the “e-record”—recorded in audiovisual form (as is the entire course of the trial). Not all courts have the technical means yet to record trials, but the number of trials recorded in audiovisual form is growing.

As a rule, the testimony is based on the questions asked by the court and the parties. The court may confront witnesses if it finds that their testimony is contradictory, usually upon motion of a party submitted after the testimony has been given. However, the court may also decide to confront witnesses on its own initiative, if justified. If a witness does not speak Polish, the court will summon a sworn translator to assist in taking the witness’s testimony.

The initiative to present evidence rests with the parties. If the court grants a motion to hear the testimony of a witness, it will summon the witness to appear in court to testify. (If there are serious reasons why this cannot be done, e.g. the witness’s advanced age or poor health, the witness can be heard at his or her place of residence.) There is no procedure for the attorneys to take pre-trial depositions of witnesses in order to verify their knowledge of the matter. Moreover, any direct contact between parties and “their” witnesses regarding the substance of their testimony may suggest that the witness is biased.

3. Expert opinion

It should be mentioned first that Polish law does not recognise the institution of an expert witness appointed by a party.

When specialist knowledge is required to resolve a case, the court will admit an opinion of an expert or a scientific institute. The court appoints experts in fields as needed who are entered on a list of experts maintained by the regional courts.

If a party submits an opinion prepared by an expert of its own choice, from a procedural point of view such an opinion is treated as a party position or a private document.

The court may appoint one or more experts, if justified by the complexity of the matter. The expert may deliver the opinion orally or in writing, however it is generally in writing. A court may order a supplementary opinion or summon the expert to testify again at another hearing, if the initial opinion was not thorough enough.

Taking evidence for foreign proceedings

It is possible to take evidence in Poland for foreign proceedings at the request of the court where such proceedings are taking place. This can involve, among other things, taking witness statements. The procedure for taking such evidence depends on the country receiving the request. Within the EU, the procedure is conducted according to the Evidence Regulation (1206/2001).

The regulation allows a request to be submitted to obtain evidence designated for use in pending or future proceedings. The same issue is covered by the Hague Convention of 1 March 1954 on Civil Procedure, amended by the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.

These conventions allow a foreign court to address a request, via the Polish Ministry of Justice, to take evidence in Poland. The request is then forwarded to the relevant district court.