Electronic service in civil proceedings
3 July 2021 was the effective date of the provisions amending the previous rules of service of court correspondence. Due to the COVID-19 pandemic such service may at present be electronic only.
Article 15zzs9 of the Act on special solutions related to preventing, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them states that the Court (obligatorily) serves court papers on an advocate, attorney-at-law, patent attorney or the Attorney General of the Republic of Poland by publishing their content in the ICT system used to make such papers available (Information Portal).
The amendments are temporary and will be effective only in civil proceedings during the state of epidemiological threat or the state of the epidemic announced due to COVID-19, as well as for one year following cancellation of the last of them. Therefore, the Court will not send letters to professional legal representatives in the traditional way. All correspondence sent by the court is to be served online with the use of accounts on the Information Portal (e.g. a certified copy of a judgment passed at a closed session, a certified copy of a judgment with reasons, decisions or rulings issued at a closed session).
Exceptions from obligatory electronic service
The requirement of electronic service via the Information Portal does not apply to court papers served with certified copies of pleadings of the parties or other documents which do not come from the court. Despite the lack of a direct reference in the act, it seems that following enclosure no. 3 to the order of the Minister of Justice concerning organisation and scope of activities of court registries and court administration departments dated 19 June 2019 the following should be considered as documents subject to electronic service which may be published in the IT system:
- orders on the return of the pleading, including the statement of claim and motion,
- payment orders issued in the proceedings by writ of payment under the provisions of the Code of Civil Procedure,
- decisions not subject to means of appeal (with respect to which means of appeal cannot be and could have not been applied at all),
- cover letters with enclosed certified copies of letters served by the court,
What is important, the president of the court may extend the list of the documents which may be served in the manner referred to above. Such an order was issued, among other things, by the President of the Regional Court for Warsaw-Praga who extended the list of court papers to include:
- certified copies of judgments, except for certified copies of judgments being enforceable titles;
- certified copies of decisions, except for certified copies of decisions being enforceable titles;
- certified copies of orders;
- certified copies of justifications of orders and rulings;
- certified copies of records and official memos.
So, in practice, it is the President of a given Court of Appeal or Regional Court who will decide on which court papers will be published in the Information Portal (at least by the time secondary legislation is unified).
Date of service of electronic letters
The date of service of a letter is the date on which the recipient reads the letter published on the information portal. If the letter is not read, it is considered as having been served after 14 days following the date on which was published in the information portal.
However, the act makes it possible for the Presiding Judge to order resignation from service of the court paper via the Information Portal, if service is impossible due to the nature of the paper.
In practice, there appear general orders on resignation from service of court papers via the Information Portal in all cases conducted by the judge. On the other hand, in Warsaw courts, pursuant to § 34 of the Rules governing the operation of common courts, it is ordered in all court judges’ offices to resign from serving a court paper via the Information Portal during the specified period due to the fact that the SAWA system is not fully integrated with the information system. Nonetheless, the basic rule which is currently functioning is that each such resignation will require a note to be made at the beginning of the court paper on resignation from service via the Information Portal, or else null and void.
The introduced change gives rise to many doubts with regard to interpretation of the regulations due to its very laconic form and lack of comprehensive rules governing the functioning of the ICT system for mutual service. The legislator also failed to take into account proper preparation for implementation of the reform – the whole system of service of hard copy documents functioning from the beginning of existence of civil courts in Poland has been changed practically overnight, without any trainings for court staff or changes of orders concerning the functioning of court registries. Thus, the current trend of resigning from electronic service results from the courts and the Information Portal not being adjusted to it.
Another problematic issue is that the system of service via the Information Portal actually forces such service of court papers, despite the fact that there is no statutory requirement for a professional legal representative to have an account in that system (it is estimated that at present approx. 22000 legal representatives do not have such an account). This results in problems in interpreting service effectiveness for a representative who does not have an account in the Information Portal. For example, in the Divisions of the Court of Appeal in Cracow it has been adopted that electronic service may be applied only with respect to those legal representatives who have an account in the Information Portal and have access to a given case in this Portal.
A different view which, due to the obligatory nature of service via the Information Portal, requires that a professional legal representative has an account in the system is presented, among other things, by the Court of Appeal in Wrocław. However, even the supporters of this theory do not accept a situation where service via the Information Portal is considered effective in the case where the legal representative had no access to the case. According to this interpretation if the legal representative gained access to the case after the date of publication of the court paper subject to service in the portal, the court paper is to be re-published in the Information Portal and then the legal representative does not have to file a motion for the deadline to be reinstated. The situation is similar to defective hard copy service to, e.g. a wrong address. It seems that formulating such a view only confirms the thesis that professional legal representative’s lack of an account in the Information Portal cannot have negative consequences for the party he/she represents.
Taking the above into consideration, what remains is to call for a uniform practice of describing service of court papers by court registries and publication of an express order in the Information Portal on whether service is made via the Information Portal or the court ordered service in hard copy. The introduced changes involve a high risk of faultless mistakes of legal representatives and for this reason do not meet the requirements of procedural justice and should be changed accordingly.
TGC Corporate Lawyers
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