We present the next part of the cycle about the changes they entered with the amendment of the Civil Procedure Code.
After serving the application and responding to the application, the court may, in justified cases, in particular in complex or accounting matters, order the parties to exchange preparatory letters. In principle, the court shall then set up a preparatory sitting, but if the circumstances of the case indicate that the holding of the preparatory sitting will not contribute to a more efficient examination of the case, the President may give it a different appropriate course, in particular to refer it to the hearing, also at the hearing (Article 2054(3) (k.p.c.)
In the recipe Article 2055(1) It was pointed out that the preparatory procedure was designed to resolve the dispute without the need for further meetings, in particular the hearing. If the dispute cannot be resolved, a plan of the hearing shall be drawn up at the preparatory meeting.
It therefore appears that, if the court considers that the circumstances of the case indicate that the preparatory proceedings will not contribute to a more efficient examination of the case, then the plan of the hearing will not be drawn up.
However, if a preparatory meeting is set up by the court, the current representatives or parties who are to participate actively in that meeting must, in principle, be present at that meeting. If they do not attend this meeting, the legislator has provided for the sanctions laid down in the legislation Article 2055(4-7) k.p.c.
In the event of the wrongful failure of the claimant (or the procedural representative required to attend the sitting without the need for the plaintiff) the court discontinued the proceedings, deciding on the costs of withdrawing the application, unless the defendant at that sitting objects to it.
On the other hand, if the reason is within one week of the date of delivery of the order discontinuance of proceedings it will justify its non-statutory, the court will revoke this decision and give the case a proper course, which will set a further date for the preparatory meeting.
At the preparatory sitting, the court should determine the circumstances between the parties. He should also attempt mediation and conduct the preparatory proceedings actively so that the case is not brought to trial.
New is the obligation of the court to communicate with the parties. So far, the court has not shown its attitude, now the court can instruct the parties about the direction in which it sees the possibility of ruling. The Tribunal may inform the parties of the outcome of the case on a legal basis other than that indicated by the party. It is not possible to demand the exclusion of a judge who will state his position on the case.
Under the rule Article 2059(1) The oral hearing plan should contain a decision on all evidence applications by the parties, replacing the evidence order. It will then not be necessary for the court to make provision to allow certain evidence. It is only after the court has dismissed the motion for evidence that it gives a decision.
In addition, according to Article 2059(1) The court plan shall contain in principle:
- • the precise identification of the subject matter of the parties' requests, including the size of the benefits involved, together with the incidental claims;
- • well-defined allegations, including formal ones;
- • establishing which facts and legal assessments remain between the parties in dispute;
- • time limits for meetings and other activities;
- • the order and date of the evidence and the examination of the outcome of the evidence;
- • the closing date of the hearing or the delivery of the judgment;
- • to resolve other issues, where necessary for the conduct of proceedings.
The agenda shall be signed by the parties and approved by the Chair. The plan shall then be served on the representatives and possibly also on the parties and this service shall have the effect of notifying the dates of the meetings and other activities covered by the plan.
one the consequences of the plan are to prevent parties from subsequently submitting evidence or claims and evidence not endorsed in the plan. Further evidence is possible on an exceptional basis and if the party is satisfied that it could not report it earlier.
Attention should be paid to the new provision Article 34a(1)) Act dated 28 July 2005 on judicial costs in civil matters, according to which a fixed fee of 100 PLN any person subject to the application shall be required to request a witness, expert or party to the hearing if the application has been submitted after approval of the plan.
The planning of court meetings will require that the hearing be concentrated within a short period of time. While there is a possibility to deal with and settle cases at a classified sitting, this solution was used quite skeptically in practice. So far, in most cases decisions have been issued in open court. Modification by adding under Article 148 k.p.c. section 3 The principle of all procedural decisions is to make provision at a secret sitting.
Part first You will find HERE, part second about the new delivery system HERE .
Author: Aleksandra Księżyk – Legal advisor, Director of the Legal Department in Warsaw Chancellery Russell Bedford Dmowski and Partners Law Firm sp. k.