Anna Maleszka

New rules for presenting evidence

Civil cases filed in Poland from 3 May 2012 will be governed by new civil procedure rules. What should the parties and other stakeholders pay particular attention to when deciding how to proceed in a case filed after the effective date of the new rules?

Civil cases will now be subject to an entirely new approach to presentation of evidence. The amendments to the Civil Procedure Code impose a number of requirements on the parties to assure the proper and speedy course of the proceedings.

The general rules of procedure in this respect are set forth in the new wording of Art. 3 and Art. 6 §2 of the Civil Procedure Code, which provide that the parties are required to take all litigation measures “in accordance with good practice” and to provide explanations of the circumstances of the case “in accordance with the truth and without any concealment.” During the course of the proceeding the parties should also present facts and evidence promptly, with concern for the effectiveness and speed of the proceeding. The regulations do not provide any sanctions, however, for a party that attempts to delay the proceeding by failing to comply with these principles.

These general rules are clarified by Art. 207 and Art. 217 §2, which also provide for certain effects of non-compliance. Art. 207 imposes discipline on parties filing pleadings during the course of the proceeding, and Art. 217 §2, although worded similarly, is more general and applies also during hearings before the court.

New wording of Art. 217

Art. 217 provides that the court hearing the case shall ignore allegations and evidence presented by the parties too late. As stated in the justification for the government bill proposing the amendments to the Civil Procedure Code (Sejm Document VI/4332), “In this manner, the system of discretionary authority of the judge will be established as the main method for focussing the litigation materials presented by the parties. It should be stressed that this is not a system of preclusion, as exclusion of late assertions does not occur by operation of law but by decision of the court. It will be up to the court to judge whether the allegations or evidence was asserted by the party in due time or too late. This assessment should reflect whether the party could or in light of the natural course of the proceeding should have raised the allegation or evidence earlier, when it is connected with material previously presented. A finding that there was delay in presenting an allegation or evidence will require the court to ignore it, except for three situations, namely if the party demonstrates that it was not at fault in the delay, if consideration of the late allegations or evidence will not prolong the proceeding, or if there are other exceptional circumstances.” This severe rule was thus tempered by allowing the court to consider late allegations and evidence under these particular circumstances. It should also be pointed out that these circumstances need not be proved by the proponent, but it is sufficient to substantiate them.

First, the party may demonstrate that it was not at fault in raising the allegations or evidence late. It would thus be sufficient to demonstrate, for example, that the party was not aware of the particular evidence, without having to prove that it was impossible to learn of the information.

The second condition for admitting late allegations or evidence is for the party to demonstrate that consideration of the materials will not prolong the case. In practice, this condition may be easier to demonstrate than lack of fault in presenting the materials late. The wording of the provision, referring to “delay in consideration of the case”, may be difficult to interpret, however.

Will consideration of the case be delayed if a party brings a new witness to the next hearing, moving to admit the witness’s testimony, which the party had not sought to admit earlier? Is there delay if a party submits voluminous new documents into evidence at a hearing? What if such new evidence is presented after the testimony of the parties has closed? Would the admissibility of the evidence in such case be assessed differently than if the same evidence were presented at the first or second session, and there was other evidence yet to be admitted?

The phrase “delay in consideration of the case” appears to be vague, which will force the courts to decide on a case-by-case basis whether it is proper to admit late evidence or ignore it, at least until a new line of precedent develops for the practice in this area. It also appears that the court should consider whether in the given case it is the first time that the party has sought to admit late evidence, or the party is notoriously late, despite warnings from the court, and it appears from the party’s behaviour that it is seeking to delay the proceeding.

The third basis for admitting late assertions, “other exceptional circumstances”, is even more arbitrary. It follows from the literal wording that this refers to circumstances “other” than delay that is not caused by the fault of the party or consideration of assertions that will not cause delay in consideration of the case. In other words, this provision apparently applies to allegations or evidence important enough that it should be admitted by the court even though the party was at fault in not raising it earlier and considering it will in fact delay consideration of the case.

As indicated in the justification for the bill, “In the new wording, Civil Procedure Code Art. 217 §2 provides for the court to ignore late allegations or evidence, but there is no reference to ‘defences’ (compare with the current wording of Art. 207 §3, Art. 47914 §2 and Art. 495 §3, first sentence).” The failure to treat “defences” in the same manner thus appears not to be an oversight, but intentional drafting.

The term “defence” has been used in the case law and the literature to refer to various types of assertions by a party. As stated in the justification for the bill, “Assertion by the parties of certain factual circumstances … is sometimes referred to informally as assertion of ‘defences’ when it is really assertion of ‘allegations’ of a factual nature, and thus late assertion of such ‘defences’, e.g. an allegation that the obligation has been performed, will be limited just like other late allegations.” However, Art. 217 will certainly not cover substantive legal defences based on declarations of will (e.g. the statute of limitations or setoff), because, as stated in the justification, “It is unacceptable that they could be excluded as a result of the party’s delay. Procedural law must not contain regulations limiting the substantive rights of the parties.”

New wording of Art. 207

The amended wording of Civil Procedure Code Art. 207—a key provision for establishing a system for focussing litigation materials based on the discretionary authority of the judge—imposes a number of restrictions on submission of pleadings by the parties.

Since entry into force of the amendments, the parties should deal with the fact that the only pleadings they have a statutorily guaranteed right to file in the court of first instance are the statement of claim and the response to the statement of claim.

Under Art. 207 §3, the possibility to file subsequent pleadings with the court of first instance is limited to situations where the court issues an order during the course of the proceeding requiring the party to file the pleading (or, prior to the first hearing scheduled in the case, such order is issued by the presiding judge of the court). Again, this decision lies within the discretion of the court.

There is an exception to this rule for pleadings containing “only a motion for admission of evidence”. Given the categorical wording of Art. 207 §3, this refers to situations in which filing of a new evidentiary motion will not require assertion of new allegations. In a pleading filed without express order of the court, the party will be able to move for the admission of evidence only as to the allegations and facts previously raised. If a pleading raises new evidence that may be regarded as late, the party will have to demonstrate that one of the three grounds exists for not excluding the evidence, as discussed above in the context of Art. 217, which follows from the nearly identical wording of Art. 207 §6.

Significantly, without express order of the court, it will not be permissible for the parties to file documents containing legal argumentation, as appears from a comparison of the new wording of Art. 207 §3 and Art. 127. Under the revised Art. 127, preparatory documents expressly include documents in which the parties state “the legal grounds for their motions or relief sought.”

As stated in the justification for the government proposal amending the code, “The new approach will exclude submission by the parties of any documents containing any of the elements referred to in Art. 127 (except for an evidentiary motion) under the pretext that it is a pleading other than a preparatory document. Whether a pleading is a preparatory document will be determined solely by its content, not the title ascribed to it by the party. Therefore if a party submits a pleading containing any of the elements proper to a preparatory document (except for an evidentiary motion), the new wording of Art. 207 §7 will apply as relevant.” This section provides that such a pleading will be rejected and returned to the party. A response to a statement of claim, or other preparatory document filed pursuant to an order of the court, filed after the deadline imposed in the order, will also be rejected and returned. Such pleadings must also be filed in the order indicated by the court, and must address the circumstances indicated by the court as requiring clarification, or will also be rejected.

It appears that the Parliament was attempting to reinforce the principle that proceedings are primarily oral, because if the parties are prohibited from asserting new allegations in pleadings absent an order of the court in this respect, they will be forced to participate actively in the hearings. This approach also seems to be confirmed by the fact that an enclosure to the minutes of the hearing submitted by a party under Civil Procedure Code Art. 161 will not be subject to the same restrictions.

As stated in the justification for the bill, “The purpose of the new regulation is to encourage the parties to present factual allegations and evidence as quickly as possible, in order to focus the litigation materials, which will enable faster issuance of a judgment.” Regarding preclusion as an overly formal instrument, the government thus decided to seek introduction of a new, more flexible system, based on the assumption that the judge hearing the specific case should assess what is best for the case to be decided properly and promptly.

Anna Maleszka, Dispute Resolution & Arbitration Practice, Wardyński & Partners