In the series of articles, we present the most important changes introduced or meant to enter under civil progressive reform. Today we focus on the new delivery system. The purpose of the amendments to the legislature in respect of service is to minimise replacement services and thus the fiction of service, so that the party does not find out that he lost the case in the enforcement phase. It was therefore decided to involve the bailiffs in the delivery.
The legislator amended the provision Article 139 k.p.c., but the most important change is the content of the new Article 1391 k.p.c.:
section 1. If the defendant, despite repeated notification in accordance with Article 139(1) sentence second, did not take the action or any other pleading which called for the defence of his rights, and no letter was previously served on him in the manner provided for in the preceding Articles and shall not apply Article 139(2-31) or another special provision providing for the effect of service, the President shall inform the claimant thereof by sending him a copy of the letter to the defendant and by requiring the defendant to deliver that letter through the bailiff.
section 2. Reason within time two months from the date of service of the undertaking in question Under section 1, submit to the file an acknowledgement of service of the pleading to the defendant through the bailiff, or return the letter and indicate the current address of the defendant or proof that the defendant is at the address indicated in the application. After the deadline has expired, the provision shall apply. Article 177(1)(6).
It seems that the legislator should leave exceptions to the service, in the form of, for example, the possibility of the claimant to demonstrate that he has made every effort to serve the action, but for objective reasons, this has not been possible, and that the court would then be able to determine the effect of the service
According to the amendments adopted, if the defendant fails to collect the consignment with the lawsuit in the post office during the period of its two-time avisation, the post office will return it to the court. However, the court will not consider it served.
The initiative has a responsibility to take over the reason that it can request that the lawsuit be served through a bailiff. The cost of delivery by the bailiff may even be around 120 PLN And the reason will bear them.
In the event of the defendant losing the case, it appears that the plaintiff may legitimately demand a refund from the defendant also of those amounts.
The reasons for this amendment indicate, inter alia, that ‘the number of situations where first the letter is returned without service, is significant throughout the judiciary.
This is a consequence of the fact that a large proportion of residents of smaller towns are permanently outside Poland, usually without reporting this to the authorities of the population records." Further, the project promoters point out in the explanatory memorandum: “At least some cases where the document initiating the proceedings was wrongfully regarded as being served despite the actual return can be avoided by enabling the bailiff to deliver such a letter.
Retirement services are generally quick, reliable and relatively cheap, and give more information about the actual whereabouts of the recipient than postal services.’
The above justification cannot be accepted. If a natural person leaves abroad, how would the plaintiff or bailiff seek a defendant abroad to serve the lawsuit?
One can imagine a situation when a mother is suing for child father alimony, who tries to avoid paying them, may even reside abroad frequently, and may not also be “identified” fully his income.
Not only will the mother as a plaintiff have to bear the costs of the lawsuit, and perhaps also legal aid, the lawsuit will not be served by the postal operator, then she will have to pay for the attempt to deliver via a bailiff, but even such service may not be effective.
Therefore, the possibility to serve the defendant through a bailiff alone may prove to be an ineffective remedy for the current returns of letters sent through a public operator in the event that the defendant fails to receive them, especially if the defendant does not wish to receive them and deliberately avoids it.
It seems that the legislator should leave exceptions to the service, in the form of, for example, the opportunity for the plaintiff to demonstrate that he has made every effort to deliver the application, but for objective reasons, this has become impossible, and that the court would have the opportunity to determine the effect of the service.
At the moment it is not known what practical dimension will have this change in the delivery system, but it may turn out that another modification will be necessary.
We invite you to read I part of the cycle Reform of Civil Progress HERE
Author: Aleksandra Księżyk – Legal advisor, Director of the Legal Department in Warsaw Chancellery Russell Bedford Dmowski and Partners Law Firm sp. k.