Reform of civil procedure - the most important changes. Part I

Act dated 4 July 2019 amending the Act – Code of Civil Procedure and some other laws (Journal of Laws of 2019, item 1469) numerous and significant changes to the Code of Civil Procedure (hereinafter: ‘k.p.c.’). Some changes came into force 21 August 2019, However, the vast majority of them will apply from 7 November 2019

Extensive because counting 213 parties, justification for the law 1 includes an explanation of the objectives of the amendments and an assessment of the existing arrangements and institutions (hereinafter referred to as ‘justification’).

The main changes are to restrict or prevent the postponement of proceedings, relieve the courts and improve their actions, impose on the parties a number of responsibilities in the process and their active participation in the preparation of the hearing, restore the amended economic proceedings, change in the appeal procedure

The main changes are to restrict or prevent the postponement of proceedings, relieve the courts and improve their actions, impose on the parties a number of responsibilities in the process and their active participation in the preparation of the hearing, restore in a changed form the proceedings in economic matters, change in appeal proceedings.

With the amendment of the Civil Procedure Code, significant changes were also made In the Act dated 28 July 2005 on judicial costs in civil matters, mainly by increasing them, which was justified by the recovery of the economic burden of court fees which were not increased from 12 years.

Today we will look at changes in the jurisdiction of the court and new solutions to prevent the parties from being abused.

Changes in jurisdiction

Under the new rule Article 34(2) k.p.c., the legislator specified that the place of performance of the contract is considered to be the place of fulfilment of the benefit characteristic of the contract in question, in particular in the case of:

• • the sale of movable goods – the place to which such goods have been or were to be delivered under the contract;
• • provision of services — place where the services under the contract were or were to be provided

Further in the recipe Article 351 k.p.c. has been made easier in cases of protection of personal property, indicating that, in the case of personal property damaged by mass media, proceedings may be brought before the court competent for the place of residence or residence of the claimant.

A similar solution was applied to cases arising from banking operations against the bank, including mortgage banks (Article 371k.p.c.) The purpose of this solution is to relieve courts in large cities, mainly in Warsaw, where banks usually have a seat, because it will no longer be necessary to bring proceedings before the court competent for the seat of the defendant bank.

In the case of real estate cases, the legislature in the new provision Article 38(3) k.p.c. has enabled the court competent to refer the case to another court at the agreement of the parties and if there are reasons for the purpose.

Prevention of abuse of procedural rights. Penalties

The Act amending the law of the General Court contains a number of solutions aimed at preventing the parties from abusing procedural law, which consists in taking on the basis and within the limits of procedural law a number of actions to delay proceedings in the case, which do not serve to ensure that the dispute is properly tried.

In the explanatory memorandum to the Act amending the act, the following typical situations are highlighted:

• • filing as a letter of complaint without a request for judicial review,
• • bringing a lawsuit of course not justified,
• • requesting a number of requests for exclusion of the judge,
• • to raise a number of complaints on the same or similar subject matter,

• to make a number of requests for correction, addition or interpretation of the judgment, and to bring numerous complaints to almost every action of the court, or not only provisions, but also orders, sometimes in technical matters. The party concerned with the delay in the proceedings complained about the action of the court had to make the complaint run, which involved further acts and obstructions.

In the opinion of the drafters, the situation in which the party may also abuse the law is the filing of letters which are not lawsuits and do not contain concrete demands, but entail considerable work by the court and the judge. This is the filing of a letter intended to constitute a lawsuit (or another type of application initiating the procedure), but in fact not in the case.

Perhaps the position presented by the project promoter sometimes takes place in practice, but in this respect it should be taken very carefully.

It is important to draw attention to, for example, social security cases in which a very often unsuccessful person actually brings a letter to the court in his case, from which the scope of the request is not entirely apparent.

Such a person does not have a proxy or even an application for aid law, nor can he adequately draw up an appeal against the decision of the pension authority and state the charges, whereas the latter sometimes makes it difficult even for professionals who raise unfairly in this case allegations of breach of the administrative procedure.

However, it is desirable that the parties be prevented from extending the procedure, in particular in bright situations. The legislator therefore introduced a general clause in the provision Article 41 k.p.c. as follows: ‘By the power provided for in the rules of procedure, parties and participants in proceedings must not be used contrary to the purpose for which they are established (abuse of procedural law)’.

While the clause is general in nature, the procedural effects of its application and the related sanctions are included in specific provisions. The Court of First Instance will be able to take action in respect of a party who abuses the procedural right:

• fines,

• charge an additional part or even the total costs of the process, and at the request of the opposing party also:

• • to charge the costs of the process increased in line with the abuse of the opposing party's workload,
• • an increase in the rate of interest due on the benefit claimed, corresponding to the abuse of the delay in examining the case, for the time corresponding to that delay,
• • leave the letter without giving it a run or omission.

The individual provisions of the Code containing sanctions are:

• Article 1911(1) k.p.c. If from the content of the application and annexes and from the circumstances of the application, as well as the facts in question under Article 228, is manifestly unfounded, the following shall apply.

section 2. If the action which the law requires to be taken following a lawsuit is of course not intended, it can be disregarded. In particular, the claimant may not be called upon to remedy the deficiencies of the application or to pay the fee, nor to check the value of the dispute or to transfer the case.

section 3. The court may dismiss the action at a secret sitting without serving the action on the person designated as the defendant or having examined the applications submitted together with the action.

section 3. The reasons for the judgment shall be written in writing. It should only provide an explanation of why the action was considered manifestly unfounded. The statement of reasons shall be served by the court of its own motion only on the claimant with instructions on the manner and time limits for bringing the complaint.

• Article 1861(1) k.p.c. a letter which has been filed as a lawsuit and which does not result in a request to settle a civil dispute shall be returned by the President to the applicant without further action, unless exceptional circumstances justify its being put in motion,
• Article 2262. section 1 k.p.c. Whenever the conduct of the party in the light of the circumstances of the case indicates an abuse of its procedural right, the court shall instruct it to apply the measures in question to it. Under section 2.

section 2. Where a court finds an abuse by a party to a procedural law, it may, in a judgment terminating the proceedings:

1) the abusing party to fine;

1. 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;
2. 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 rate of interest charged to the party whose abuse caused delay in the examination of the case for the time corresponding to that delay, except that the rate may be increased no more than two-twice; provisions with a maximum permissible percentage of statutory interest for delay shall not apply.

• Article 3943(1) k.p.c. A complaint lodged only for delay in proceedings shall not be admissible.

section 2. A complaint brought only for the delay in the proceedings shall be considered as:

• 1) second and further complaint from the same party to the same decision,
• 2) a complaint against a decision given as a result of actions caused by an earlier complaint by the same party
• – Unless the circumstances of the case exclude that assessment.
• section 3. Complaint referred to Under section 1, shall be left in the case file without any further action, in particular not submitted to the competent court. The same applies to the writings relating to its transfer.
• section 4. The requesting party shall be informed of leaving the complaint and of the writings related to its submission only once – when filing the complaint.
• section 5. Provision Article 380 shall apply mutatis mutandis.

• Article 45812 k.p.c. (in economic matters) - regardless of the outcome of the case, the court may charge the costs of the proceedings in whole or in part to the party who, before the action is brought, has abandoned the attempt to resolve the dispute voluntarily, has waived its participation in it or has participated in it in bad faith and has thereby contributed to unnecessary action or defective determination of the subject matter of the case

New rules on restrictions to raise the charge of deduction may be considered a solution to prevent abuse of procedural law. Namely, the party will not be able to create any charge of deduction at its own discretion, but will have to comply with the provision in this respect. Article 2031 k.p.c.:

• section 1. The charge of deduction may be based only on the defendant's claim from the same legal relationship as the claimant's claim, unless the defendant's claim is indisputable or materially similar to a document not exclusively from the defendant.
• section 2. The defendant may raise the charge of deduction no later than in the event of a dispute over the substance of the case or within the time limit two weeks from the date his claim became due.
• section 3. The charge of deduction may be raised only in a procedural document. The application shall apply mutatis mutandis to that letter, with the exception of those relating to fees.
• 1 Print No 3137 Government draft Act amending the Act - Code of Civil Procedure and some other laws. Source: http://www.sejm.gov.pl/Sejm8.nsf/druk.xsp?nr=3137

Author: Aleksandra Księżyk – Legal advisor, Director of the Legal Department in Warsaw Chancellery Russell Bedford Dmowski and Partners Law Firm sp. k.