The absence of an aviso regarding an important letter or consignment could have a negative impact on life. In practice, however, we have no way of asserting our rights to neglect mail, as confirmed by a recent court ruling.
Order of 17 January 2019, reference no. IV CZ 74/18, The Supreme Court – the Civil Chamber dismissed the complaint based on failure to deliver the letter through the post office.
Order of 9 February 2018 the applicant was called upon to remedy the formal deficiencies of the cassation action which he lodged against the order of the District Court of 19 July 2017, within a weekly period, subject to the rigor of rejection.
District Court order of 30 April 2018 The complainant rejected the complaint after finding that the formal deficiencies — despite the delivery of the notice on 6 March 2018 – have not been completed.
The service was effected as specified in Article 139(1) KPC since the applicant’s representative did not receive a registered consignment containing a request from a post office, despite a two-way proper avisation.
For the sake of procedural security at the moment, there seems to be nothing left to invest in monitoring a registered mailbox. Otherwise, there is always a risk that an unreliable courier will settle the outcome of the case by serving the competent court
In its complaint against the decision of the District Court, the applicant requested its annulment and referral for review and ‘to conduct a complaint’, based solely on the claim of the procedural representative that ‘no aviso nor first neither second was not left in the box’ and that he had not received a message about the consignment during his stay at the post office in other cases.
According to Article 139 The NPC in the event of failure to provide services as provided for in the preceding Articles, a letter sent through a postal operator within the meaning of the Act of 23 November 2012 – The postal law must be lodged with the postal office of that operator and served in another way at the office of the competent municipality, by placing a notice of this at the door of the addressee's flat or in a transferory mailbox, indicating where and when the letter was left, and instructing them to be received within the time limit seven days from the date of the notification. In the event of an unsuccessful expiry of that period, the notification shall be repeated.
The Supreme Court pointed out in its order that this form of service ‘is preserved under the basic condition that the address indicated should be correct’, but that the physical act of service itself proved less relevant in excess of theoretical considerations.
According to the caselaw, ‘if the requirements laid down in Article 139(1) The NPC, taking into account the detailed conditions for service provided for in the Regulation of 12 October 2010, are fulfilled, the letter is effectively served" (cf. the order of the Supreme Court of 14 February 2013, II CZ 189/12).
As the Supreme Court pointed out in the present case, the Complainant’s claim of failure to deliver the consignment in any way was not similar and did not even indicate that he had attempted to initiate a complaint or otherwise clarified the question with the postal operator.
According to the Supreme Court, the complainant thus showed no grounds for contesting the effectiveness of the delivery of the consignment. Indeed, the complainant did not show outstanding care in the course of his investigation, but the question remains as to how in practice the ‘non-existence’ of the fact could be seen.
There is no doubt that it is not enough to state in the complaint that no notice has been left but that the notification or submission of the consignment to the facility was made defective.
Both where, if the requirements applicable to service are met, according to Article 139 KPC – the effectiveness of service is accepted on the basis of the acceptance of the presumption (inferior) as well as when this effect is recognised by legal fiction (possibly overturned), it is uncontested in the case-law that the challenge of delivery of a consignment which meets the formal requirements (submission, notification and return) cannot be based on the sole claim of the party (representative) that the ‘avisa’ has not been left in the box at all, but requires proof, and at least the claim of similarity.
This applies to both judicial and administrative proceedings. So much for theory. How can you even claim that the courier did not show up at the right address and leave no notice, and that the information about service effective under the rules is not true? Unfortunately, no court has indicated this.
For the sake of procedural security at the moment, there seems to be nothing left to invest in monitoring a registered mailbox. Otherwise, there is always a risk that an unreliable courier will settle the outcome of the case by serving the competent court.
Written by Rafał Czepik. Legal advisor, graduate of the Faculty of Law at the University of Warsaw, specialist in economic and civil law.