The planned amendment of civil procedural law provides for the introduction of a new institution to the law to constitute an instrument of the courts against those who abuse their procedural rights.
On 11 April 2019 Permanent Subcommittee on the Amendment of Civil Law after consideration of a government bill amending the Act – The Code of Civil Procedure and some other laws submitted a report on the said project, which provides, inter alia, for direct binding in the provisions of the procedural law of the institution of abuse of procedural rights.
The prohibition of abuse of procedural law under the laws will be a bitter pill for all those who have an interest in bringing unfounded lawsuits, attorneys who make many complaints about the same issue or proposers of actions aimed only at bringing a lengthy procedure
Abuse of procedural law – the existing perspective
The issue of abuse of the law in the area of procedural law, namely public law, has aroused and continues to raise lively controversy. There was a discrepancy in both literature and case law.
In the course of the dispute so outlined, a clear answer was eluded, or the exercise of procedural rights on the basis of their assessment for compliance with the purpose for which they were granted could be classified as an abuse of rights, with specific procedural consequences.
Despite the differences of view, the view that the institution of abuse of procedural law is applicable in civil proceedings has prevailed, as expressed by the resolution of the Supreme Court - Civil Chamber of 11 December 2013 III CZP 78/13.
In the judgment cited, the Supreme Court stressed that the prohibition of infringement of procedural rights should be based on a fair process, the obligation to act fairly (in accordance with good manners) and the purpose (essentiality) of the process, which is to effectively protect the subject rights of material law. This principle applies when a particular right is at the disposal of a procedural standard, but the exercise of which serves a different purpose than the protection of the subject rights, and the effect of the exercise of that right would be contrary to the purpose of the procedural provision and to the procedural economy.
It should therefore be concluded that, although the abuse of procedural law still does not have a direct legitimacy in the laws, the obligation of that institution is derived, as a matter of fact indirectly, from other procedural standards.
Abuse of procedural law – proposed legislative solutions
In order to prevent the abuse of procedural rights of the parties to the proceedings, the drafter proposed to introduce a new one in the NPC Article 41o the following: ‘By the power provided for in the rules of procedure, parties and participants in the proceedings must not make use incompatible with the purpose for which they are established (abuse of the procedural right)’.
The legislator also decided to equip the courts with legal instruments at the disposal of the court in the event of a finding of misuse of the procedural right, because according to the proposed Article 2262(1) The NPC shall, whenever the party’s conduct in the light of the circumstances of the case indicates an abuse of its procedural right, be instructed by the court to take the measures referred to in Article 2262(2) KPC.
But in thought Article 2262(2w) where the court finds an abuse by a party to the procedural law, it may, in a decision terminating the proceedings:
1) the abusing party to fine;
- regardless of the outcome of the case, as appropriate to the abuse of the procedural right of delay in its examination, impose on the abusing party the obligation to reimburse costs in part more than would indicate the outcome of the case or even the reimbursement of costs in full;
- at the request of the opposite party:
(a) grant, on the part of the abuser, the increased costs of the process corresponding to the increased workload of the opposing party, but not more than twice;
(b) increase the interest rate charged to the party whose abuse caused the delay in the examination of the case, for the time corresponding to that delay, except that the rate may be increased no more than twice; provisions with a maximum permitted statutory interest rate for delay shall not apply.
The introduction of institutions of abuse of procedural rights to the Polish legal order is certainly in line with the objective (essentiality) of the process, which is the actual protection of subject rights resulting from substantive law. At the same time, the prohibition of abuse of procedural rights under legal provisions will be a bitter pill for all those who have a taste for unfair lawsuits, attorneys who make many complaints about the same issue or proposers of actions aimed only at bringing a lengthy procedure.
Author:
Michał Skwarek - counsel application in the legal department Russell Bedford Poland. Graduated from the Faculty of Law and Administration of the University of Warsaw.