17.10.2017 Litigation and arbitration

End of doubts about the need to raise objections to the payment order in the EPU

Interpretation doubts as to the filing of opposition against order for payment issued in electronic procedure by co-defendants resolved by decision of the Supreme Court.

If the factual circumstances of the case are relatively simple, it is possible to pursue pecuniary claims in an “ordinary” writ of payment procedure and, for the last couple of years, also in an electronic writ of payment procedure.

Defendants may file a statement of opposition against the order for payment issued by the court both in the „ordinary” and electronic writ of payment procedure.

Due to a different regulation of effects produced by the statement of opposition filed in those two procedures, there appeared a legal question – if there is more than one defendant, does the filling of opposition by one co-defendant produce the legal effect with respect to other co-defendants?

The Supreme Court in its decision of 9 June 2017  (case file no.: III CZP 21/17) resolved these doubts.

Doubts as to interpretation were caused mainly due to different semantic notation of Article 505(36) Civil Procedure Code regarding the effects produced by a duly filed statement of opposition in electronic writ of payment procedure from the notation of similar provision of civil procedure applicable to the “ordinary” writ of payment procedure (Article 505 § 2 Civil Procedure Code).

According to Article 505 (36) Civil Code Procedure (CPC) applicable to the electronic writ of payment procedure: “Where statement of opposition is duly filed, the order for payment shall lose effect in its entirety whereupon the court shall refer the case to a court of general jurisdiction” – what may suggest that the order for payment loses its effect with respect to all co-defendants, also in a situation where only one of them filed the opposition.

Whereas, the provision of Article 505 § 2 CPC (referring to the “ordinary” writ for payment procedure) provides that: “An order for payment shall lose effect insofar as it is opposed. An opposition filed by only one of the co-defendants with respect to the same claim or with respect to one or some of the claims shall cause the order to lose effect only with respect to those claims.”

Therefore, as long as the wording of Article 505 § 2 CPC raises no doubts as to interpretation because it precisely defines the personal scope as regards the effects produced by filing the opposition and clearly provides that these effects are produced only with respect to the person who exercised the right to file the opposition, the literal wording of Article 505 (36) CPC (applicable to the electronic writ of payment procedure) cast significant doubts and suggested a contrary intention of the legislature (setting aside the order for payment with respect to all co-defendants acting in the given electronic procedure).

According to the Resolution of the Supreme Court dated 9 June 2017, provision of Article 505 (36) CPC should be interpreted as though the opposition filed in the electronic procedure by one of co-defendants should cause the order for payment to lose effects in its entirety only with respect to the defendant who filed the opposition – that is in the same manner as the provision of Article 505  § 2 CPC. However, the above Resolution of the Supreme Court may be considered a mere “correction”
 of the defective statutory provision what in the future court practice may give rise to further controversies and re-examinations by the Supreme Court.

In addition, in the statement of reasons, the Supreme Court held that: “the concept of entirety of the order for payment refers only to the entire claim i.e material accumulation, and not the personal accumulation. It should be pointed out that the principle of party-disposition and the principle governing the accusatorial procedure do not allow the court to perform procedural acts without the motion (interlocutory appeal) of the authorized person without the explicit statutory power”.    

Therefore, the Supreme Court  expressly held that the phrasing “entirety of the order for payment” refers only to the material and not the personal aspect of the statement of claim, and actions of one person may produce effects with respect to other persons strictly in the circumstances specified in the statute.

The above resolution of the Supreme Court resolves doubts as to interpretation of Article 505 (36) CPC, what, bearing in mind the growing popularity of electronic writ of payment procedure, is of vital importance as it brings the electronic writ of payment procedure more in line with the “ordinary” writ of payment procedure and imposes consistent principles regarding filing the opposition against orders for payment issues by the courts both in “ordinary” and in electronic writ of payment procedure – what causes that each of co-defendants must remember that, in principle, it always acts in its own name and for its own account.


Piotr Jakubowski
Senior Associate, Advocate
TGC Corporate Lawyers

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