Dr Maciej Kiełbowski

New interlocutory appeal to the Supreme Court

A change in the Civil Procedure Code enables the parties to seek a ruling from the Supreme Court of Poland when a judgment is vacated on appeal and the case is remanded to the lower court for rehearing. A new interlocutory appeal will be available for this purpose.

This procedural change is found in a new section, Art. 3941 §11, which provides, “An interlocutory appeal to the Supreme Court will also lie when the court of second instance vacates the judgment of the court of first instance and remands the case for rehearing.”

This provision supplements the existing Art. 3941 §§ 1 and 2, which have provided primarily for two cases in which an interlocutory appeal may be filed with the Supreme Court against orders by an appellate court: dismissal of a cassation appeal or a petition for a declaration of the unlawfulness of a legally final ruling, and a ruling on costs that were not ruled on by the court of first instance (i.e. a ruling on the costs of the appellate proceeding).

The amendment has also introduced a distinctive new approach to disputing an assessment of costs on appeal. The new Art. 3942 §1 provides for a “horizontal” interlocutory appeal—to a different panel of judges at the same court—against an order by the appellate court on the costs of the proceeding (and certain other matters as well, such as an interlocutory appeal against denial of a motion to recuse a judge).

New interlocutory appeal

In any event, the right to file an interlocutory appeal to the Supreme Court in a civil case has always been an exception to the rule.

Introduction of a new interlocutory appeal may appear to be a major departure from this rule. Under Art. 3941 §11, there is no restriction on this new interlocutory appeal, particularly concerning the amount in dispute (a condition for the permissibility of a cassation appeal). It should be assumed that the new interlocutory appeal will be permissible in any case, against any ruling by the court of second instance vacating a judgment and remanding the case for rehearing.

This legislative intent appears as well from the justification for the bill introducing the amendment: “The need to introduce this approach is justified by several considerations. According to studies, the institution of vacating a judgment of the court of second instance and remanding the case for rehearing is overused. Meanwhile, the current model for civil procedure assumes that the second instance should review the merits of the case, in which there should be a new resolution of the case, resulting in issuance of a ruling on the merits, ending the dispute between the parties. Too often, resort to vacating the judgment of the court of first instance and remanding the case for rehearing vitiates this assumption and prolongs the proceeding. Moreover, the notion of ‘failure to consider the essence of the case’ as one of the conditions entitling the appellate court to vacate the ruling below and remand the case for rehearing is interpreted unevenly in the jurisprudence.” (Point V(1) of the justification for the bill, Sejm Document VI/4332.)

Thus, according to the legislative history, overuse of the institution of vacating and remanding, which undoubtedly prolongs cases, is a phenomenon that should be opposed. This is clearly a praiseworthy position.

As an aside, it should be noted that a similar amendment, similarly justified, was introduced not very long ago in the administrative procedure: the new wording of Administrative Procedure Code Art. 138 §2, governing vacating the challenged decision in its entirety and remanding the case for reconsideration by the administrative body of first instance. (I discuss this issue in more detail in my article “Przesłanki wydania decyzji uchylającej” (“Grounds for Issuance of a Decision Vacating a Judgment”), Kadra Kierownicza w Administracji 4/2012.)

Effect on the parties—new options

It is apparent that the Parliament has created a new litigation option for the parties, which they should consider anytime a judgment is reversed on appeal and the case is remanded for rehearing.

Vesting jurisdiction in the Supreme Court of Poland to review such cases may be particularly important in cases where the amount in dispute is low (generally below PLN 50,000, when a cassation appeal is not permitted), but may help avoid the filing of petitions by parties in that situation seeking a declaration of the unlawfulness of a legally final ruling (governed by Civil Procedure Code Art. 4241 ff).

In cases where it is permissible to file a cassation appeal, the change may result in consideration of the case by the Supreme Court, and an opportunity to learn the court’s position on the case, at an earlier stage, prior to the potential filing of a cassation appeal. (A cassation appeal may be filed only against a final ruling on the merits—not against a judgment by the appellate court vacating the judgment below and remanding the case for rehearing.)

Effect on the courts—more work

An obvious effect of the amendment will be an increase in the number of cases considered by the Supreme Court. This may also potentially affect the time it takes to obtain a ruling in cases of this type.

In addition, the amendment raises various doubts, particularly under Civil Procedure Code Art. 3941 §3, which incorporates by reference a number of other provisions that are to be applied as relevant. It is expected that the Supreme Court will resolve these issues in practice. One issue that is unclear for now is the procedural form of the ruling that will be issued by the Supreme Court in the new type of interlocutory appeal. As a rule, an interlocutory appeal is decided by issuance of an “order”, but in this case it would appear to be an order ruling on the correctness of a judgment, which is an unusual construction.

Maciej Kiełbowski, Dispute Resolution & Arbitration Practice, Wardyński & Partners