The other side of the court ortal – civil procedure digitalisation in a new form

By the Act of 5 August 2025 (Journal of Laws of 2025, item 1172), for the first time the Code of Civil Procedure introduced the possibility for parties to civil proceedings to file pleadings via the courts’ information portal. This became possible by virtue of a new “block” of provisions, Articles 125¹–125⁴ of the Code of Civil Procedure. Until now, communication through the portal had been one-sided – now we will be able to experience the advantages and disadvantages of two-way communication.

Admittedly, the change concerns only a limited scope of civil proceedings – namely those in which the principal method of filing pleadings is an IT system (“if a special provision so provides”), that is, at present at least: (i) electronic writ-of-payment proceedings and (ii) insolvency/restructuring proceedings. It is nevertheless worth noting these amendments, as they may set the direction for further legislative ideas on how to achieve the long-awaited – and increasingly indispensable – transition of courts from a “system” of paper files to “digital files.” The manner of introducing the changes, together with the explanatory memorandum to the bill, prompts a pessimistic conclusion that we will not soon see a sensible, comprehensive regulation of issues relating to the digitalisation of civil procedure.

Admittedly, the change concerns only a limited scope of civil proceedings – namely those in which the principal method of filing pleadings is an IT system (“if a special provision so provides”), that is, at present at least: (i) electronic writ-of-payment proceedings and (ii) insolvency/restructuring proceedings. It is nevertheless worth noting these amendments, as they may set the direction for further legislative ideas on how to achieve the long-awaited – and increasingly indispensable – transition of courts from a “system” of paper files to “digital files.” The manner of introducing the changes, together with the explanatory memorandum to the bill, prompts a pessimistic conclusion that we will not soon see a sensible, comprehensive regulation of issues relating to the digitalisation of civil procedure.

And here appears the first blood-chilling legal solution – pursuant to Article 125² § 1 of the Code of Civil Procedure, if an attachment cannot be effectively filed together with the pleading via the information portal “due to its characteristics,” the attachment “shall be filed with the court bypassing the information portal, with this circumstance being made plausible, within 3 days from the date of filing the pleading.” Within the meaning of Article 243 of the Code of Civil Procedure, making plausible – unlike proving – is an act which does not provide certainty of the existence of a given fact (subject to plausibility), but only renders its existence credible, probable. Given the casuistic approach of courts to curing formal defects of pleadings and meeting procedural deadlines, leaving in the realm of plausibility the occurrence of two indeterminate expressions – “the characteristics of the attachment” and “filing bypassing the portal” – may give practitioners considerable cause for concern. How is one to make it plausible that the nature of a given document prevents its filing via the portal – does this refer to the technical limitations of the portal or to some other, undefined characteristics of such an attachment? Must the party, in fulfilling the obligation of plausibility, convince the court that (a) it was impossible to use the IT system? For the fact that the attachment was filed within 3 days bypassing the portal seems the least problematic aspect.

A similar solution is provided in Article 125² § 2 of the Code of Civil Procedure – if the entire pleading cannot be filed on the last day of the time limit due to “restrictions in the availability of the information portal attributable to the court, preventing the filing of that pleading,” the pleading may be filed on the following day, provided it is not a public holiday or Saturday, and the portal is operational on that day. The fact of “restrictions in the availability of the information portal attributable to the court, preventing the filing of that pleading” must again be made plausible by the party in the pleading filed. A literal interpretation of this provision leads to the thesis that the party must make it plausible not only that there were restrictions in the availability of the portal, but that “they were attributable to the court.”. If the court entrusts (or has already entrusted) the technical maintenance of the portal to an entity professionally engaged in such activities, and that entity fails to perform its duties, rendering the portal unavailable, is this, in light of Article 429 of the Civil Code, unavailability of the portal “attributable to the court”? The answer may perhaps be sought in provisions on the process of digitalisation, scattered across various legal acts of different rank. But was the legislator’s intent truly expressed correctly by the phrase “attributable to the court”? This is open to doubt.

It may appear that these doubts are of merely publicistic, critical value. The group of provisions in question will enter into force only on 1 March 2026, while filing pleadings via the information portal (where it is not possible via the IT system) will become mandatory for professional attorneys only from 1 March 2027 (in more than a year and a half). Implementing regulations for these amendments to the Code of Civil Procedure are yet to be adopted. It seems justified therefore to caution the legislator that amendments are being introduced into civil procedure intended to “patch up” the lack of adequate IT preparation, while the problem of their application and the risk of their inconsistent interpretation is being shifted onto the parties. It should be noted that under Article 125² § 3 of the Code of Civil Procedure, “the presiding judge shall return the pleading or the court shall dismiss the remedy if the circumstances specified in § 2 first or second sentence are not made plausible,” i.e. the circumstances relating to the unavailability of the court portal.

Thus, the consequences of these IT shortcomings will be borne by the parties – it will be for the party to show (to the standard of plausibility) that failure to file an attachment or failure to meet a deadline was the result of circumstances beyond its control. More specifically, that the problem “was attributable to the court” and not to any third party or external event. Another consequence is that for a long time parties to civil proceedings – not only professional attorneys, but also the parties they represent – will function in yet another reality of hybrid solutions. In the explanatory memorandum to the amending act the legislator also stated that “in the future it is planned to also organise the provisions concerning the use of IT systems supporting court proceedings.” This is such a vague declaration that one may have justified concerns about the temptation to introduce similar IT solutions to those currently operating not only within the narrow group of proceedings covered by the present amendment, but in relation to all civil cases.

Looking at the timeline of the changes, within the current narrow scope the provisions of the Act of 5 August 2025 will be “fully” applied only from 1 March 2027, which raises the question – when does the legislator plan to introduce further digitalisation measures for civil procedure as a whole? Within 2 to 5 years? It might seem, therefore, that there is still plenty of time to introduce thoughtful and comprehensive solutions for the entire civil procedure, reflecting IT solutions already available to courts.

On the other hand, a period of 2–5 years is not so long in the reality of the Polish judiciary – both in terms of the pace of adjudication and the pace of introducing changes in the functioning of the courts, equipping them with adequate hardware and software, and ensuring sufficient judicial, assistant and clerical staff. Hence the concern that the analysed provisions, conceived as a temporary solution, will in fact – albeit with modifications resulting from corrections made during their application – turn into a model solution for the entire civil procedure.

While the direction of amendments to civil procedure can only be one – towards digitalisation and acceleration of civil proceedings, inter alia by simplifying and expediting the circulation of court correspondence – at this stage, given the current level of regulatory underdevelopment of many issues essential for the safe and reliable “circulation” of court correspondence, the amendment must be assessed critically.

To balance the above complaints of the author of this publication with something positive – at long last (hopefully) an important doubt in the practice of civil proceedings concerning “electronic” powers of attorney has been clarified! Article 89 § 1² of the Code of Civil Procedure now provides that “a power of attorney granted in electronic form shall be affixed with a qualified electronic signature, trusted signature, or personal signature.” Thus the legislator has managed to create, in a clear and simple manner (and also relatively broad as to the acceptable forms of affixing electronic powers of attorney), a regulation that responds to practical issues of court practice. It is worse, however, when the legislator must grapple with the shortcomings and slow progress of court digitalisation (I mention the Jitsi system only to say that I will pass it over in silence) – in such case, I fear, even the most rational legislator cannot pour from an empty vessel.