Ombudsman unhappy about improper service of court papers
The citizens’ advocate in Poland has again raised the issue of the legal effects of improper service of judicial documents.
On 30 August 2011 the Polish Ombudsman submitted a protest to the Minister of Justice submitting again the position that the current measures provided for in the Civil Procedure Code to deal with improperly served court rulings are insufficient, because there are no mechanisms requiring the server of court papers to ascertain whether the recipient actually resides at the given address. As a result, defendants who were improperly served may find themselves in a difficult litigation posture.
For example, if service is defective, a default judgment, or an order for payment issued in a proceeding for an order for payment or in a summary proceeding, may become legally final. This raises the question of whether a defendant who subsequently learns that such a ruling has been issued against him has any avenue for seeking to set aside the judgment, and of what sort. Should the defendant move to have the judgment served again, or to reinstate the period for responding to the claim, or to reopen the proceeding, or should an appeal perhaps be filed? These are different types of legal measures, some of them mutually exclusive, and because the clock is ticking it may not be possible to resort to all different approaches in turn.
According to the Ombudsman, one possible solution in such situations would be to designate a legal instrument to prevent the negative effects of defective service while staying the enforcement proceedings.
This issue has been raised before by the Ombudsman, but so far the Minister of Justice has not found sufficient grounds to propose any new regulations to deal with the problem. Perhaps the arguments will be more persuasive this time.
Anna Zielińska, Dispute Resolution & Arbitration practice, Wardyński & Partners