Disputes between Entrepreneurs Faster, Simpler but... More Expensive
By Marzanna Sobaniec, Penteris
The most significant amendment to the Polish Code of Civil Procedure in 30 years entered into force 7 November 2019. As of 7 November 2019, entrepreneurs in Poland can expect faster case processing and a simplified procedure. Court disputes between entrepreneurs will be heard according to so-called separate commercial proceedings as well as an expanded catalogue of commercial cases.
This is due to changes brought by the recent amendment to the Polish Code of Civil Procedure (Act of 4 July 2019 amending the act - Code of Civil Procedure and certain other acts; Journal of Laws of 6 August 2019, item 1469).
What should entrepreneurs know about the changes?
Primacy of documentary evidence will force companies to maintain diligent documentation of present contracts
1. Witness hearing will become a last resort. It will only be admitted when other evidence (mainly documents) has been exhausted or is lacking, and the facts relevant for the settlement of a case have not been clarified;
2. Core contractual events or milestones (such as acceptance of work, detection of defects, or notification of the contractor thereof) will have to be evidenced with a document (e-mail, hard paper copy, on computer, or a device that enables the recording and reproducing of the voice). This change obliges entrepreneurs to document in detail their actions, declarations of intent, knowledge, meetings, coordination of meetings in investment/construction processes. The outcome of a future legal process may depend on this foresight. A company which is more diligent in maintaining its documentation may gain an advantage in the event of a dispute;
3. The primacy of documentary evidence will affect not only court proceedings resulting from contracts already performed, but also contracts in progress, forcing companies to introduce new management procedures.
Judgment of the court of first instance will serve as an interim injunction
4. An unenforceable judgment of the court of first instance, in particular awarding a monetary sum, will already constitute a security title allowing for the claimant to enforce it against the debtor. The secured amounts will be deposited in a Ministry of Finance account and "returned" to the debtor if the court case continues to be successful at the second instance.
Possibility of Excluding Evidence upon Agreement
5. The parties to a dispute will be able to agree to exclude particular evidence as inadmissible in the course of a dispute based on a specific legal relationship (e.g. witness testimony or testimony of the parties). The parties will be able to enter into a relevant agreement in writing or orally before the court, even if the proceedings have already commenced.
6. The maximum fee for claims will be double and amount to PLN 200,000 where the amount in dispute is PLN 4,000,000 or higher (previously, the fee was capped at PLN 100,000);
7. Applications for securing a pecuniary claim filed prior to bringing legal action, previously subject to a nominal fixed fee of PLN 100, will be subject to a fee corresponding to 1.25% of the amount in dispute and may be as high as PLN 50,000.
Rulings within Six Months
8. The ruling of the court of first instance should be rendered no later than within six months from the date of the statement of defence. This time limit serves merely as a guideline for the court; however, one should hope that it will motivate the courts to expediate their rulings and give priority to commercial cases.
Favouring Settlement Discussions and Dispute Mitigation
9. Regardless of the outcome of the case, the court will be able to charge the costs of the proceedings, in whole or in part, to a party that does not attempt to resolve the dispute amicably prior to a statement of claim being filed, i.e. a party that either does not participate in settlement negotiations or conducts such negotiations in bad faith, thereby contributing to an unnecessary legal action being brought before the court or to the object of the case being determined incorrectly.
Importance of Time Limits: Time and Other Restrictions
10. Entrepreneurs must also be prepared for the fact that, as a rule, they will not be able to make additional claims, change the addressee of the claims or modify the claim itself once proceedings have begun. Thus, entrepreneurs bringing legal actions must know what they wish to accomplish and how much they are willing to pay to achieve that goal.
Marzanna SobaniecGGI member firm
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Penteris is a law firm combining in-depth expertise, robust advice, and a pan-regional reach. We boast a team of seasoned dispute resolution specialists under one roof. Our strong project management skills are particularly important in case of complex, inter-connected disputes. We ensure comprehensive project management and cross-coordination of all related cases, in addition to court representation.
Marzanna Sobaniec is a Polish attorney-at-law, Partner of the Dispute Resolution Practice at Penteris. Handling multi-jurisdiction cases ranging from Real Estate, Energy, Banking, FMCG, and Construction, she works with diverse businesses, both from the private and public sectors. Marzanna’s broad experience in litigation, arbitration and mediation sees her find the most effective dispute strategies and business solutions for her clients.
Published: Litigation & Dispute Resolution Newsletter, No. 12, Spring 2020 l Photo: TTstudio - stock.adobe.com