On 11 December 2018 Supreme Court 7 Judges adopted a resolution on the signature of the act III CZP 31/18, in which it indicated that a copy of the procedural document containing the extension of the proceedings was not served on the basis of Article 132(1) k.p.c.
Under the rule Article 132(1) k.p.c. in the course of the case, the attorney, the legal counsel, the patent attorney and the counsel of the Attorney General of the Republic of Poland shall serve each other directly with copies of procedural documents with annexes.
The content of the pleading shall include a statement of service of the copy of the letter. service of the copy of the letter or its delivery by registered mail. Letters, not containing the above statement, shall be returned without calling for the removal of this absence.
At the same time, according to the provision Article 132(11k).Order Article 132(1) k.p.c. does not concern: filing a counterclaim, appeal, cassation action, complaint, opposition to a judgment in absentia, opposition to a payment order, charges against a payment order, application for the freezing of an action, action for resumption of proceedings, action for a declaration of non-compliance with the law of a final judgment and action against a judgment of a judicial referee to be filed in court with copies for the opposing party.
Supreme Court in the latest resolution dated 11 December 2018, taken in storage 7 judges, reference no. III CZP 31/18, He rightly accepted that a copy of a procedural document containing an extension of proceedings was not served on the basis of Article 132(1) K.p.c., and therefore a professional procedural representative containing an extension of the proceedings, should submit to the General Court together with a copy to the opposing party
Provision Article 132(11k).p.c. therefore lists exhaustively procedural documents which professional representatives must file to the court together with a copy for the other party, represented by a professional proxy.
Among the letters indicated under Article 132(11k).There is no procedural document covering the extension of the action. Therefore, according to only point (e) the correct wording of the provision Article 132(11k).p.c.
all other pleadings than: mutual action, appeal, cassation action, complaint, opposition to the judgment in absentia, opposition to the order for payment, charges against the order for payment, application to secure the action, action for reopening of proceedings, action for declaration of non-compliance with the law of a final judgment and action against the judgment of a judicial referee – would be served between professional representatives on a specified basis under Article 132(1) k.p.c., i.e.
directly between professional attorneys. This view has its supporters, according to whom the provision must be interpreted strictly with its wording. In addition, there is also a prohibition on interpretation extending the provisions of exceptions to the principle, and certainly the provision Article 132(11k).p.c.
is the exception to the principle of the service to each other of the procedural documents by the professional representatives provided for in the provision Article 132(1) k.p.c.
However, the axiological and legal-dogmatic interpretation as well as the nature of the procedural document covering the extension of the action cannot be disregarded. Letters listed in the provision Article 132(11k).p.c. are letters for which a time limit has been reserved or which require a review by the court of formal deficiencies, or which are intended to secure the claim or should be verified by the Court of First Instance as to their admissibility.
A procedural document containing an extension of the action contains a new request and, therefore, should correspond not only to the requirements of the pleading, but also to the requirements of the action, which means that a court must be audited, which in the case of a lawsuit is greater than in the case of ordinary pleading.
In the absence of a letter of extension of the application, the new request may not be recognised.
At the same time, the effects of the appeal are completely different from that of not taking into account a new request (possibility of appeal) than of challenging a procedural action or not taking into account the circumstances indicated by the party (there is no possibility of appealing directly in the course of proceedings at the instance in question).
The position that a procedural document with an extension of the proceedings brought by a professional representative is to be filed with the court together with a copy for the opposing party has been exhaustive discussed in the resolution of the Supreme Court of 21 January 2016 reference no. III CZP 95/15.
In the resolution mentioned above, the Supreme Court noted, among other things, that another qualification of a procedural document involving an extension of the action would be incompatible with Article 193(3) in finek.p.c., which provides that the effects specified under Article 192 k.p.c.
starts when the defendant is served with a letter containing an amendment and corresponding to the requirements of the application.
This provision protects the defendant from the need to take a defence if the letter does not meet the requirements of the application, and this implies that the letter is served after the court has carried out the formal review. Service of the letter directly in accordance with Article 132(1) k.p.c.
would lead to a situation where the defendant does not know whether the letter has had the effect of hanging the dispute and whether there is a need to take a substantive position in the case and take procedural action.
Supreme Court in the latest resolution of the day[11] December 2018, taken in storage 7 judges, reference no. III CZP 31/18, He rightly accepted that a copy of a procedural document containing an extension of proceedings was not served on the basis of Article 132(1) K.p.c., and therefore a professional procedural representative containing an extension of the proceedings, should bring to the Court together with a copy to the opposing party.
In consistently adopting the above position, it should be considered that the same should also be done in the case of the submission of a procedural letter withdrawing the action in whole or in part.
Author:
Aleksandra Księżyk – Legal advisor, Director of the Legal Department in Warsaw Chancellery Russell Bedford Dmowski and Partners Law Firm sp. k.