Reflections and Postulates on Code of Civil Procedure

Years of experience in dispute resolution, frequent travel—both physical and remote—across Poland for hearings, and extensive correspondence in legal proceedings lead to the following reflections and proposals:

1. Initial provisions of the Code of Civil Procedure defining the rules of civil proceedings – including: good manners of the parties and attorneys, efficiency and speed of proceedings, concentration and effectiveness of evidentiary proceedings, prohibition of abuse of procedural rights – cannot constitute illusory provisions that are passed over on a daily basis. The reading and application of the Code of Civil Procedure should not begin with Art. 15 of the Code of Civil Procedure (court jurisdiction).
   
   This should be followed by a reorganization of the work of courts and court support staff, especially in larger agglomerations where the inflow of cases is the highest. Without this, even the best amendment to the Code of Civil Procedure will not improve the proceedings – e.g. the issue of implementing court orders months after their issuance. On the one hand, it may take approximately 6 months from filing the lawsuit to the issuance of the judgment, and on the other hand, it may take many months or even years from filing the lawsuit to its delivery to the other party/scheduling the first hearing.
   
   
2. The issue of exclusions in commercial proceedings and the submission of documents during the case. The lawsuit and the response to the lawsuit – that much is clear. However, what’s next? It is difficult to find a middle ground and unfortunately it would be appropriate to say “it depends”.  
   
   A strict, formal exclusion limiting one to specifying everything in the lawsuit and the response to the lawsuit seems far-reaching – but it should be a desirable course of action.  
   
   Such a preclusion should not operate automatically, e.g. when the first hearing is scheduled approximately a year or two after submitting the response to the lawsuit (submitted within 2 weeks of serving the lawsuit).  
   
   Extra time – i.e. submitting an additional letter or letters from each side – seems justified (not in every case and not with respect to all evidence). In such a case, it would be necessary to look at, assess and possibly enforce the party’s inappropriate conduct (the above – e.g. good manners, abuse of law).
   
   
3. Perhaps it is too early, especially in courts where the number of incoming cases is the highest – however, it would be desirable to determine the number of cases on the docket per day/week to enable planning court activities in a concentrated manner, e.g. scheduling a hearing for 3 consecutive days within one case in order to take evidence (witnesses, experts).  
   
   In fact, evidence, especially witness testimony, taken years (several, a dozen or even more) after the event to which the testimony is intended usually has little evidentiary value (if it is still possible to conduct it).
   
   
4. Specifying and standardizing the procedure for submitting further pleadings after the lawsuit and responding to the lawsuit as part of commercial proceedings.  
   
   The relationship between the provisions on the organization of proceedings (Article 205¹ of the Code of Civil Procedure et seq.) and proceedings in commercial matters (Article 458¹ of the Code of Civil Procedure et seq.) is interpreted differently by courts – including: whether the letter can be submitted with the prior permission of the court or whether permission is not required.  
   
   The provisions of the Code of Civil Procedure should provide the parties with clear rules of conduct and should not allow for different interpretations as to how to submit a writ – e.g. due to custom, in the area of ​​appeal X it is different than in the area of ​​appeal Y (a matter of legal certainty).
   
   
5. Issues related to the prohibition of filing a counterclaim in commercial proceedings and a significant limitation in raising an allegation of set-off.  
   
   Something that was supposed to streamline proceedings generates further cases and lawsuits regarding controversial issues between the same parties. There are visible attempts to combine and suspend cases, as well as the courts’ reluctance to hear claims “covered by the prohibition” of set-off or counterclaim.  
   
   Article 1 of the Code of Civil Procedure indicated that the Code regulates proceedings in matters relating to civil law relations. If certain events have occurred under substantive civil law (e.g. set-off), it is difficult to assume, based solely on the provisions of the Code of Civil Procedure (procedural) itself, that this event should simply be omitted in the framework of a given proceeding intended to regulate the relationship under civil law. Of course, there is room for misuse or procurement of unjustified claims of set-off – here it may be worth referring to the regulations known for example from arbitration, relating to the payment of claims of set-off (e.g. the same fee as for a lawsuit, with an appropriate extension of the time for filing – without the mechanical application of 2 weeks in each case).

Improving proceedings requires well-thought-out determination in every field – this applies both to the legislation itself (amending regulations or a new code, organization of courts), but also to the application and enforcement of regulations. All participants in the proceedings are, in a sense, responsible for its course, starting from the parties and their representatives, through administrative and secretarial services, and ending with the court.

It would be good to “simply” feel that during court proceedings there is an efficient fight involving arguments and evidence, within the framework of clear and enforceable rules, at the end of which the parties will receive a judgment relating to the heart of the case. And all this without wasting everyone’s time and energy on guessing what the case is about (e.g. vague writs from the parties), without waiting for further activities in the next year or years (e.g. the possibility of expressing wishes “for the next year” at the hearing already in the first quarter), without the feeling that the case is being delayed or that the scope of the case is stretched in an undefined direction, or that it is not completed due to illegible formalisms.