Instituting proceedings

How long do proceedings last? When can a Polish court hear the case? Can the parties choose the law or court? Is filing a statement of claim the only way proceedings can be instituted? What is the proper court to hear a particular case?

How long do proceedings last?

It is difficult to indicate any general timeframe for court proceedings in Poland. The duration of a civil case varies depending on the complexity of the case, the amount of evidence offered by the parties (submission of documents or testimony of witnesses) and the number of hearings.

Previously, before the first hearing was scheduled by the court, the parties could exchange several rounds of pleadings. The plaintiff filed the statement of claim, the defendant filed a statement of defence, the plaintiff then filed a reply to the defence, and so on. Further exchange of pleadings depended on need or the decision of the court. In cases filed after 3 May 2012, however, it is now mandatory to exchange only one round of pleadings at the initial stage of the proceeding. The plaintiff files a statement of claim and the defendant files a defence. Exchange of further pleadings may be ordered by the court, but pleadings filed without express leave of the court are rejected and returned to the party (unless they contain only motions to admit evidence). After the initial round of pleadings, the court generally only considers the evidence. Further exchange of pleadings and presentation of new allegations and evidence by the parties are now limited. If they are late, they may be admitted only by order of the court. (Under prior practice, exchange of pleadings in ordinary proceedings could go on almost endlessly, and the court could admit any new evidence submitted by the parties at any stage of the proceedings, although even in ordinary proceedings the court could require the parties to submit all evidence within a specific time and refuse to consider evidence submitted thereafter.)

Evidence is considered during hearings. Hearings are typically scheduled at intervals of one to two months, although sometimes hearings are scheduled for consecutive days. If the number of witnesses requires several hearings, proceedings will be extended accordingly. The procedure for taking evidence from experts typically lasts three to four months in less complicated cases where no objections are made and there is no need to supplement the opinion. In complex cases, however, it may take up to a year or more.

The length of the proceedings also depends largely on the type of procedure that is employed.

One of the most time-consuming aspects of civil proceedings, particularly when a foreign litigant is involved, is the process of serving the pleadings and other court papers on the parties. In all proceedings (except for cases where all parties are represented by counsel, who are required to serve pleadings directly on one another), the pleadings are filed with the court, with copies for the other party, and the court then serves the copies on the adversaries. Often the court will not take any action before it receives proof of receipt of a pleading.

Moreover, under Polish law, parties, witnesses and experts must receive a summons to appear in court for the hearing at least one week in advance. Departures from this rule are allowed only in extraordinary situations and are very rare.

The duration of proceedings also depends on the region and even the court considering the case. (Courts in Warsaw are the slowest due to the number of cases they handle.)

When can a Polish court hear the case?

Under general rules of Polish law, a Polish court has jurisdiction to hear a case if:

  • The defendant has a habitual abode, residence, or registered office in Poland
  • An obligation arising out of a legal act (e.g. a contract) was performed, should have been performed, or will be performed in Poland
  • An obligation not arising from a legal act (e.g. in the case of torts) arose in Poland
  • It concerns the operations of a branch or establishment of the defendant located in Poland
  • It concerns property/financial claims and the defendant holds property or intangibles in Poland with a value that is significant in proportion to the amount in dispute
  • The subject of the dispute is located in Poland
  • The case involves the estate of a decedent who had a habitual abode or residence in Poland at the time of death.

However, it must be noted that these provisions of the Civil Procedure Code are applied only if not otherwise provided by international agreement. Treaties and conventions in this respect—for example the Brussels I Regulation (44/2001) and the Lugano Convention, which concern jurisdiction of courts within Europe—always take precedence over national law.

Under the Polish Civil Procedure Code, cases involving title, possession or use of real estate in Poland (e.g. lease, tenancy or the like, with certain exceptions) lie within the exclusive jurisdiction of the Polish courts, regardless of the nationality of the defendant. Exclusive jurisdiction cannot be modified in any way by the parties.

Under Polish law, a court which has jurisdiction to consider a case has no discretion to refuse to consider it on the basis that the courts of another state have a closer connection to the case. In other words, Polish courts have no discretion to apply the doctrine of forum non conveniens. This rule is mainly connected with the requirement of certainty and reliability of the law. The doctrine of forum non conveniens is seen as likely to cause negative jurisdictional conflicts (if all the courts the parties approach find that they should not hear the case, and thus the case goes unheard) and not guaranteeing the parties that a court with jurisdiction over the case will consider it.

If a court lacking jurisdiction issues a judgment, the judgment is considered void.

A defence of lack of jurisdiction is considered by the court upon motion of a party, but the court is also required by law to verify its own jurisdiction, on its own initiative. For this reason a defence of lack of jurisdiction may be considered by the court at any stage of the proceedings, and the requirement to raise all claims and defences in the initial pleading (also in commercial cases commenced after 3 May 2012, conducted under the new procedural rules) does not apply to the defence of lack of jurisdiction.

If the court finds that the defence of lack of jurisdiction is justified, or establishes this fact on its own, it will then dismiss the statement of claim and issue an order discontinuing the proceedings. This decision can be appealed according to general rules set forth in the Civil Procedure Code.

It should be noted that if jurisdiction exists at the time of filing of the statement of claim, it will extend throughout the whole of the proceedings (the rule of perpetuatio fori).

In addition, if there were no grounds for the Polish court to have jurisdiction at the time the proceeding was commenced, but grounds for jurisdiction arose later, the court may not hold that it is an the improper forum.

Can the parties choose the law or court?

Under Polish law the parties can decide that their legal relationship will be subject to a particular law and may choose a jurisdiction or even a particular court.

As for choice of jurisdiction, rules established by the Brussels I Regulation (44/2001) apply. This means that if the parties, one or more of whom are domiciled in an EU member state, have agreed that a court or courts of a member state are to have jurisdiction to resolve any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction unless the parties have agreed otherwise. Parties not domiciled in the EU may conclude the same agreement, and in such case the courts of other member states will have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.

Outside the scope of the Brussels I Regulation, the Polish Civil Procedure Code applies. The parties to a particular relationship can agree to make all disputes arising from the relationship subject to the jurisdiction of the Polish courts. Moreover, with regard to obligations arising from agreements, individuals or entities conducting commercial activity can agree in writing to exclude the jurisdiction of the Polish courts in favour of the courts of another country (provided that such courts can assume jurisdiction under the laws of that country). This does not apply, however, in the case of real estate situated in Poland, in relation to which Polish courts have exclusive jurisdiction which cannot be modified by the parties.

Do any actions have to be taken before proceedings are instituted?

To commence an action under the ordinary civil procedure, it is sufficient to file a statement of claim in court and pay a court fee. There are no required pre-suit measures.

Is filing a statement of claim the only way proceedings can be instituted?

An alternative way of commencing proceedings is to file an application for a settlement before the court.

This procedure allows the parties to settle with the sanction of the court before proceedings have commenced and at much lower cost. A court settlement can be concluded in the course of proceedings after the statement of claim has been filed, however, in which case only half of the court fee, as a rule equal to 5% of the value of the claim, is returned to the plaintiff. On the other hand, the court fee for filing an application for settlement before proceedings have commenced is fixed at PLN 40 (about EUR 10). In both cases the settlement has the same legal effect. An application for settlement is highly recommended in cases where it is likely that the parties will reach agreement. It is also a common means of interrupting the running of the limitations period.

What is the proper court to hear a particular case?

A statement of claim must be filed with the proper court that has jurisdiction to hear the case. A statement of claim filed improperly is forwarded to the right court or division with no negative consequences at the commencement stage. It should be noted, however, that at the stage of filing an appeal such a mistake can have very serious consequences, including rejection of the appeal.

The competence of a court to hear a case depends on two main factors. On the one hand, cases are assigned to district and regional courts based on the amount in dispute, or if specifically provided by law (see System of Common Courts). The other criterion is geographical (territorial jurisdiction of the regional courts).

The Civil Procedure Code establishes a general rule that the court’s competence to consider a case depends on the defendant’s domicile (in the case of an individual) or registered office (in the case of a legal person). The domicile of an individual is the place where the person resides with the intention to remain there permanently. The registered office of a legal person is understood to mean the place where the managing body has its headquarters. There are numerous exceptions to the general rule.

If the defendant is not domiciled in Poland, the competence of the court depends on the defendant’s last place of residence in Poland, or if unknown or the defendant has no place of residence in Poland, then the last domicile in Poland.

In relation to claims concerning ownership and other rights in real estate and for claims connected with participation in a company, a cooperative or an association, Polish law establishes exclusive territorial jurisdiction of the court within whose jurisdiction the real estate or the registered office of the entity is situated.

Moreover, in several cases Polish law establishes alternative jurisdiction. This allows the plaintiff to choose between the standard jurisdiction based on the domicile of the defendant and another indicated jurisdiction.

For example, if a proprietary claim concerns the commercial activity of a business, the case can be heard by the court within whose jurisdiction the main place of business or a branch is situated (if the claim is connected with the activity of the branch). A suit seeking conclusion or amendment of an agreement or a declaratory judgment concerning the existence or terms of an agreement, or involving conclusion, performance, amendment, termination, rescission, or breach of a contract, may be filed with the court within whose jurisdiction the agreement was to be performed. Tort claims may be pursued before the court within whose jurisdiction the tortious conduct occurred. If a claim concerns lease or tenancy of real estate, the location of the real estate determines the alternative jurisdiction. Another exception concerns an obligation under a bill of exchange or a cheque, where the place of payment is the determinant.