Statement of claim
What requirements must a statement of claim meet? At what address does the court serve the statement of claim? What are the rules on service when a defendant has its registered office abroad? Does a defence have to be submitted? what impact on the conduct of proceedings do the parties have and what is the role of the court?
What requirements must a statement of claim meet?
Civil proceedings are usually commenced by filing a statement of claim. When the statement of claim is filed, court fees must be paid, or a fee waiver requested (at least with respect to the initial filing fee), or the court will summon the plaintiff to pay the fee.
After filing of the statement of claim, and dealing with court fees, the court checks whether formal requirements are met. If it contains any formal defects, the court will summon the plaintiff to cure them within 7 days. When the statement of claim is formally in order, the court will serve the statement of claim on the defendant.Currently, in cases commenced after 3 May 2012, similar standards and formal requirements are applied in all types of civil cases, including requirements with respect to presentation of evidence in the case. Under the amended regulations, the court will now ignore allegations and evidence presented late, unless the party demonstrates that it was not at fault in failing to present 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.
This means that all allegations and available evidence to support them must be presented in the first pleading (the statement of claim in the case of the plaintiff, or the defence in the case of the defendant), or the party may lose the right to rely on them in the further course of the proceedings. The plaintiff may thus be forced to some extent, in advance, to foresee the arguments of the other side and present possible counterarguments at the time of commencement of the case.
Previously, these more rigorous requirements applied only in the separate procedure for commercial cases (eliminated for cases filed after 3 May 2012), which had a specific and formal character.
At what address does the court serve the statement of claim?
After confirming that the statement of claim fulfils formal requirements, the court proceeds to serve it on the defendant.
The statement of claim is served at the domicile address in the case of individuals or at the registered office address in case of other entities.
Business entities are required to register all changes of their address. If they fail to do so, service made to the address indicated in the relevant register is deemed effective. If the address it out of date and the statement of claim is returned, the returned statement of claim is left in the court files as if service had been effected. If the business entity is an individual, service is made by the court to the domicile address.
What are the rules for service when a defendant has its registered office abroad?
If the defendant is not domiciled in Poland, the statement of claim must be served in accordance with the rules of the country where the defendant is domiciled. In the case of another EU member state, the court sends the translated statement of claim to the authority responsible for effecting service in that member state together with a form described in the Service Regulation (1393/2007).
Poland is a party to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The Hague Convention provides for service between signatories through a “central authority” appointed in each state with authority to effect service.
In cases not covered by these regulations or other multilateral or bilateral conventions, the reciprocity rule is applied. This means that the Ministry of Justice addresses an inquiry to the relevant authority of the country in question to establish the practice for service with regard to Polish citizens or Polish entities.
A significant change was made in this regard, effective 17 August 2013, in connection with amendment of Art. 11355 §1 of the Civil Procedure Code. It now provides that a party that has no domicile or habitual residence or establishment in Poland or another EU member state and has not appointed an attorney residing in Poland to conduct the case is required to indicate an agent for service in Poland. This means that the Polish court will serve its correspondence on parties with a domicile (or habitual residence) in the European Union—if they have not appointed an attorney to conduct the case—without requesting that they appoint an agent for service in Poland.
Otherwise, a defendant residing outside the EU is informed of the obligation to indicate an agent for service in Poland. If the defendant fails to do so, subsequent pleadings are left in the case file as if service had been effected.
How is a foreign statement of claim served in Poland?
As in the case of service abroad, as regards serving foreign process on a party in Poland, the rules of the country where the defendant is domiciled apply.
Where the claim was issued in an EU member state, the Service Regulation (1393/2007) applies. Service pursuant to this regulation should be effected through the Polish regional courts.
Where the regulation does not apply, and the claim originates from a country that is a party to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, the request for service should be made to the Polish Ministry of Justice.
Does a defence have to be submitted?
The role of the statement of defence in Polish civil procedure increased considerably as a result of recent amendments to the Civil Procedure Code. In cases filed after 3 May 2012, a defence may be, but need not be filed. There is an exception when the court orders the defendant to file a defence, within a designated period of no less than two weeks. The defence should be filed with the court that served the statement of claim on the defendant, enclosing a copy for the plaintiff as well.
The requirements with respect to the contents of the defence also changed significantly. While previously in ordinary proceedings there were no particular rules for the content of the defence or an obligation to present all available evidence in the defence, now 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 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.
In commercial proceedings (cases between businesses commenced prior to 3 May 2012), the defendant was required to file a defence within two weeks of service of the statement of claim.
Mailing a defence on the last day before the deadline at an outlet belonging to the Polish postal service appointed in accordance with the Postal Act is tantamount to filing it in court. As of 17 August 2013, the same effect is achieved by dispatching the defence at an outlet belonging to the operator providing universal postal services in another EU member state. By contrast, this effect is not achieved if the response is sent, for example, by courier, unless it physically reaches the court before the deadline. In turn, the failure to file a statement of defence entitles the court to issue a default judgment in favour of the plaintiff when the facts presented in the statement of claim do not raise any substantial doubt.
Currently, the rules concerning submission of evidence in the statement of claim apply to the defence as well. When a defence is required, the defendant must present all allegations and available evidence in the defence. Further allegations or evidence may be admitted by the court if the defendant demonstrates circumstances excusing late assertion of the allegations or evidence.
What impact do the parties have on the conduct of proceedings and what is the role of the court?
In Poland, civil proceedings are adversarial and the parties are fully responsible for the conduct and outcome of the dispute. The parties, not the court, decide what procedural instruments are to be employed to prove their claim. The court acts on its own initiative only in exceptional situations.
At the initial stage of the dispute the parties choose between initiating adversarial proceedings and filing a motion for settlement with the court. The settlement procedure is recommended in cases where it is likely that the parties will reach a relatively quick agreement. Some disputes are submitted to arbitration, but the parties must consent to that procedure. Before initiation of proceedings the parties can also employ some means of strengthening their position in the dispute, such as obtaining interim relief to secure claims and evidence.
The plaintiff (and only the plaintiff) is authorised to request the court to conduct proceedings for an order for payment, which is a specific procedure in which the court makes a decision based exclusively on certain documents that are enclosed with the statement of claim. (There is a fixed list of documents that may serve as the basis for this procedure, such as an official document, an acknowledged statement of account, a bill of exchange or a cheque.) A request for the case to be heard using the order for payment procedure must be made in the statement of claim.
As a result of recent amendments to the Civil Procedure Code, now in all civil proceedings (as was formerly the case in commercial proceedings) the key decisions connected with conduct of the case must be taken at the stage of filing the statement of claim or defence. This includes submission of evidence. Failure to present all allegations and available evidence in the first pleading entails severe consequences, as the party may lose the right to present them at a later stage in the proceedings. The court will ignore late allegations and evidence unless the party demonstrates that it was not at fault in failing to present them in the statement of claim, defence or subsequent pleading, consideration of the late allegations or evidence will not delay consideration of the case, or there are other exceptional circumstances excusing the delay.
As the outcome of the case is largely determined by the evidence (or motions to take evidence) submitted by the parties with their initial pleadings (statement of claim or defence), and generally only evidence raised at that point may be admitted by the court, it is common practice to err on the side of caution by presenting more evidence than necessary at the beginning of the case. A motion to admit evidence may later be withdrawn at any time.
The most common motions by the parties concern admission of evidence in the form of documents, expert opinions, witness testimony, testimony by the parties, and so on.
The role of the court is generally passive. It is limited to examination and assessment of motions and evidence to determine whether they comply with procedural regulations. (While the court may introduce evidence at its own initiative, this is exceptional.) The court admits specific evidence, such as documents, the testimony of specific witnesses, and expert opinions. The court also decides whether late submission of evidence is justified. Finally, the court schedules the hearings and decides whether the case has been sufficiently explored so that the case may be closed and a judgment rendered.
It should be noted that it is the duty of the parties to prove all statements, allegations and claims or indicate to the court the means of proving them. Failure to present arguments and evidence to the court, or late submission, will force the court to render a decision based solely on the evidence before it, which may be severely limited. In such circumstances the parties cannot appeal on the grounds that the court did not verify certain facts or did not admit certain evidence, because it was the duty of the parties and not the court to prove or disprove the claim.