The start of any new activity in life brings uncertainty. The same applies to a blog devoted to dispute resolution. To get someone interested in the Polish civil procedure or arbitration seems more difficult than writing a court report or even a script of a serial movie in which the audience should experience the emotions of the court room. The procedures are similar to forest paths – they split and join, are sometimes narrow and rarely visited, or quite to the contrary – well trodden and walked on so that a reflection on their shape disappears. My wish is for our blog to be as systematic as possible, that it will not avoid intellectual controversies and at the same time it will be helpful to anyone who tries to understand what the official term “system of justice” really means in civil law cases. For those interested in a concise description of the Polish system of common and arbitration courts, I recommend the descriptions on our website. The main feature of contemporary law is the constant variability of its contents. It is worth looking at this phenomenon just before other changes come into effect. These changes will surely be the subject of my statements in which on the one hand I would like to write about detailed procedural solutions, and on the other hand, to look from time to time at the civil law procedure in general as at the manner of settling legal disputes which are inevitable in the course of legal transactions.
Will we write less to the courts?
On May 3, we will celebrate the 221st anniversary of the passing the Polish Constitution of May 3rd. On the same day, the 170th amendment to the Code of Civil Procedure will come into force1. Will it be a historical event? Out of 169 amendments, as many as 140 occurred within the last ten years. At least 1500 editorial units were either amended or added, which may lead to the conclusion that even in this normative act, the longest one in Polish law, certain editorial units had to be amended several times. The next amendments revoke the special rules for procedure in commercial matters, which are not advocated by the entrepreneurs and professional attorneys due to the limitation in calling for evidence at that late stage rather than at the stage of filing a claim or response thereto, and due to their formal nature. Now, all typically disputable matters will be reviewed in ordinary proceedings, and the limitations in hearing the evidence will apply to all. The difference underlined in the justification, between the loss of right to invoke evidence by virtue of law, and the loss of this right by way of a court decision, which the court must take after the initial exchange of pleadings, does not affect the practice. The effect seems to be exactly the same, which I will describe separately. The aforementioned amendment of the Code of Civil Procedure, like all former ones, is being made in order to facilitate procedure, and its intention is to be the so-called concentration of the procedural material, including the parties’ statements. Why then should we write less? Many lawyers love pleadings comprising dozens of pages. Also, clients often expect that their attorney will provide a detailed and destructive response to each pleading of their opponent. In the new legal status only one pleading is expected – the statement of claim and statement of defense. All further preparatory pleadings can be effectively filed only at the court’s request. Otherwise, they are subject to return, namely they do not exist in procedural terms. An exception is the pleadings containing only motions for evidence. However, how does one effect the court order of submission of further pleadings? Paradoxically, if the court fails to do it ex officio, it seems that a motion should be submitted for adjudication of exchange of the pleadings. The inquisitive reader would say that such pleading will be returned as the court did not order its filing. Fortunately, it seems that this type of pleading does not meet the criteria for declaring it a “preparatory pleading” (art. 127 of the Code of Civil Procedure), as it does not contain a statement on the circumstances of the case or the adverse party’s statements. Therefore, it can be filed without limitations arising from the new wording of art. 207 of the Code of Civil Procedure. If the court does not adjudicate the exchange of the pleadings ex officio or at its request, the speech at the hearing is left, which will be associated with a high procedural risk as long as the hearing is not recorded (recording was probably supposed to have been implemented before the amendment). Currently, the courts do not note the legal arguments of the parties and their representatives in the minutes. If they were supposed to do this in the traditional minutes, the discussed mechanism of acceleration of the proceedings will cause its prolongation instead.
- Act of September 16, 2011 on the amendment of the Code of Civil Procedure and certain other acts (Journal of Laws No.233, item 1381).