Commercial proceedings return to the Code of Civil Procedure
Since November 2017 the Ministry of Justice has been working on thorough amendments to the Code of Civil Procedure. At present, the bill is being assessed. The planned amendment includes a number of far-fetched changes which are assumed to accelerate examination of civil cases by courts. What seems to be of greatest importance from the perspective of entrepreneurs are commercial proceedings which are to be re-introduced to the Code of Civil Procedure. Such a solution already existed in the past, but was abandoned in 2012.
All pieces of evidence in the first pleading
The most essential change consists in restoration of the obligation for the entrepreneur to invoke all claims and pieces of evidence already in the first pleading. If this obligation is not fulfilled, the party loses the right to present such pieces of evidence at a later stage of the proceedings. What is also important is that the party will be obliged to make a statement in the first pleading that they invoked in it all claims and pieces of evidence. If such a statement is not made, the court will summon the party to invoke all claims and pieces of evidence within a week of service of the summons, or else they will lose the right to present them at a further stage of the case. However, this restriction will not apply to cases where earlier presentation of evidence was not possible or the need to present such evidence occurred at a later stage, but with such a reservation that the party will have two weeks to present new pieces of evidence, counted from the date on which this became possible or on which the need to present such pieces of evidence arose.
Contact with the court by e-mail
Another novelty is the obligation for the parties to provide their e-mail addresses in the first pleading or state in it that the party does not use e-mail. The above solution is to make contacts between the court and the parties more efficient.
Predominance of documentary evidence
Significant changes will not omit evidentiary proceedings, either. Taking of evidence consisting in witness testimonies will be possible only in cases where despite examination of other pieces of evidence there will still be unexplained circumstances in the case. Thus, the legislator expressly admits predominance of documentary evidence in commercial proceedings. The court will admit pieces of evidence consisting in witness testimonies by way of exception.
Another new solution is to be the so-called evidentiary agreement pursuant to which the parties will be able to exclude particular pieces of evidence in one or several cases (e.g. by determining that in a given case they will not use an opinion of a court-appointed expert to prove a given fact).
A situation desirable to the legislator is resolution of a dispute between entrepreneurs in an amicable way, so that cases which may be settled as a result of negations of the parties themselves are not brought to court. This is assumed to be a cheaper and faster way and will enable business relations between business partners to develop more efficiently. Therefore, the drafted amendment provides that in case evidence collected in the case shows that the party resigned from an attempt at amicable settlement of the dispute or evaded it, or participated in it in bad faith, which caused unnecessary filing of the suit or defective specification of the subject-matter of the case, the court will be able to charge such a party with the costs of the proceedings, irrespective of the outcome of the proceedings.
Legal nature of the judgment
It is also worth to note that according to the assumptions of the bill the judgment in the commercial case is to be made equal to the security title before it becomes final and binding, so the judgment of the court of I instance will have the same status as an appealable writ of payment in the writ-of-payment proceedings, which means that having such a security title the claimant will be able to go to the bailiff in order to, e.g. seize movable assets or the bank account of the defendant.
In case of unfavourable settlement, the party will retain the right to challenge the decision of the court of I instance by filing an appeal against the judgment passed. One has to also bear in mind that according to the drafted amendments, if the appeal filed is to be examined at a hearing attended by the parties, it will be necessary to include the relevant motion in this respect in the content of the appeal.
Senior Associate, Advocate
TGC Corporate Lawyers