Watch out for rejected pleadings: Amendment of the Civil Procedure Code

The amendment of Poland’s Civil Procedure Code which entered into force on 7 November 2019 changed certain provisions on the formal requirements for pleadings and the consequences of failure to meet these requirements. Harsh rules, uncertainty on the proper method of curing formal defects, and varying practices of the courts may result in final rejection of a pleading and loss of the case for seemingly trivial reasons. Professional attorneys must exercise particular caution.

Rejection of pleadings—harsh new rules

Following the amendment, a pleading filed by a professional attorney which cannot be properly taken up for consideration due to formal defects is subject to rejection without summoning the party to correct or supplement the pleading (Civil Procedure Code Art. 1301a §1). Under the previous law, rejection was not automatic, but the attorney was first summoned to cure the formal defects. The pleading was rejected only if the attorney failed to comply with the summons.

In the event of rejection of a pleading under the new regulations, the party may “refile” the pleading within one week from service of the order on rejection of the pleading. The order will indicate the defects that were the grounds for the rejection. This information will help the attorney determine the reasons for which the pleading was rejected and what should be corrected.

Does the entire pleadings have to refiled, or is it enough to cure the defects?

The regulations refer to “refiling” of the pleading, not merely curing the formal defects. A literal reading of these provisions leads to the conclusion that if, for example, a statement of claim is rejected because of the lack of a power of attorney, the entire statement of claim must be refiled, with all enclosures, supplemented by the correct power of attorney. This regulation is different from before the amendment, when it sufficed to submit the missing document (e.g. power of attorney), without having to refile the entire pleading.

If the refiled pleading is free of formal defects, it exerts effect from the date of the original filing. This means that if after rejection of the pleading for formal reasons, the pleading is refiled without defects, the pleading is deemed to have been filed effectively at the time of the original filing. This is crucial in terms of the need to protect substantive deadlines, such as the statute of limitations. If for example a statement of claim was filed on the last day before expiration of the limitations period, but is rejected due to formal defects, the running of the limitations period is interrupted (the statement of claim is deemed filed on the original filing date) if the statement of claim is refiled without defects within one week after service of the order on rejection of the statement of claim.

Different court practices

The courts take a differing approach to whether it is necessary to refile the entire pleading (e.g. the whole statement of claim, with all the same enclosures plus the previously missing document), or it suffices to merely cure the defect. Until the proper manner of proceeding in such situations is resolved, the safest solution is to refile the entire pleading, despite the resulting difficulties.

Refiling of a pleading is troublesome for practical reasons. In the case of extensive statements of claim, containing dozens or hundreds of enclosures, refiling of the entire pleading makes it necessary to prepare and verify extensive documentation (along with copies for the other parties), which obviously entails additional costs and fattens the case file. This also requires the court to check once again whether the content of the pleading and the other enclosures correspond to the prior version. Given the scale and importance of this issue, it seems that it should be resolved by the parliament introducing unequivocal regulations, or by the Supreme Court reconciling the case law from the lower courts.

Increasing procedural formalism

The amendment of the Civil Procedure Code places a great emphasis on procedural formalism. Failure to comply with formal requirements, often involving petty shortcomings, can have serious consequences for court cases. When the material filed with the court is lengthy, it is easy to overlook something, such as some document or other. The courts have been vested with a wide range of grounds for rejecting pleadings and thus cutting the number of cases they must handle. But this is not a desirable trend from the perspective of the role performed by the justice system and for realisation of the right of access to the courts.

Agata Jóźwiak, attorney-at-law, Dispute Resolution & Arbitration practice, Wardyński & Partners