The Act amending the Civil Procedure Code and certain other acts of 4 July 2019 (Dz.U.2019.1469, further “Amending Act”) introduces to civil proceedings revolutionary rules governing the organisation and the course of action.
They are meant to contribute to more efficient hearing of cases. Especially the introduction of a pre-trial hearing and a “trial plan” as well as changes to evidence preclusion will be particularly important for the course of court action in the new reality.
Upon filing a defence to the statement of claim, but also when a defence is not filed and default judgement is not entered, the presiding judge schedules a pre-trial hearing and summons the parties to appear. In a notice to appear the presiding judge advises the parties on the obligation to appear and produce all allegations and evidence. The court also advises on consequences of unjustified failure to appear (understood as failure to appear or failure to actively participate) in the hearing such as:
The above consequences are evidently serious and may affect the outcome of the case, therefore, the parties should act proficiently and with due care as early as at the stage of pre-trial hearing.
Pre-trial hearing should be scheduled no later than two months of filing a defence or the last pleading requested by the court, and if not filed – no later than two months upon expiry of time limit to file the same. Pre-trial hearing aims at resolution of the dispute without the need of further hearings and the trial in particular (lawmakers thereby ceased to equate the constitutional right to due process with the right to trial). Holding a pre-trial hearing is, in principle, obligatory unless it is clear it will not help to resolve the case more efficiently.
Pre-trial hearing is held in accordance with the rules of in camera sitting and is informal – adhering to detailed civil procedure rules is not necessary as long as it does not help to achieve the aim of the hearing. Pre-trial hearing does not have to be held in a courtroom and may be held at other venue corresponding to the solemnity of the court.
During the pre-trial hearing the court proceedings is planned. The court determines the subject matter of dispute and its legal aspects. The presiding judge encourages the parties to reconcile and seeks amicable settling of the case, especially by way of mediation. To this end, the presiding judge helps the parties to find amicable ways of dispute resolution, supports them in formulating settlement submissions and points out ways and consequences of dispute resolution, including financial consequences. On the basis of the findings, the court will determine the appropriate manner to handle the case. Already at this stage the court should be able to advise the parties on likely consequence of their positions. Written minutes are taken from the hearing. Settlement attempts are not included in the minutes and it is not allowed to record them either. If a settlement is reached, its body should be reported in the minutes or in a separate document signed by the parties and enclosed to the minutes.
The appearance of the parties and their attorneys at the pre-trial hearing is obligatory, however, the presiding judge may release either party from participating in the hearing. Decision in this respect may be issued before pre-trial hearing (on the party’s motion or ex officio by the presiding judge) or at the hearing (at the party’s motion or ex officio by the presiding judge). This element of the proceedings constitutes in fact the new and additional procedural obligation which aims at precising and explaining of the parties’ positions – thereby simplifying potential further proceedings which a party and its attorney should subordinate to in order to avoid negative procedural consequences, except for the situation where a party represented by attorney fails to appear.
Before the pre-trial hearing, a claimant may file a motion to be exempted from participant in it. The consequences of filing such motion include:
If defendant fails to appear in the pre-trial hearing or does not participate in it actively, the court will prepare a trial plan without participation of defendant even in the case of justified failure to appear. In addition, in the case of unjustified failure to appear by defendant, the court may award the costs of proceedings against the defendant, regardless of the outcome of the case, in a part larger than prescribed by the outcome of the case.
The judge may flexibly moderate the hearing of the parties. However, a pre-trial hearing should not be, in principle, adjourned, apart from limited number of situations; i.e.: (i) directing parties to mediation, (ii) when there are chances to settle the dispute amicably, (iii) when there is a need to explain the circumstances material for resolution of the case, (iv) in the case of justified failure to appear by the parties and (v) upon unanimous motion of the parties.
If the dispute is not resolved at the pre-trial hearing, a trial plan is prepared at the hearing with participation of the parties. Trial plan contains decisions as to parties’ evidence motions, replacing to that extent court orders as to evidence. Trail plan must also contain:
The trial plan may include references to the pleadings of the parties. The presiding judge resolves any controversies as to issues included in the trial plan. Then, the trial plan is signed by the parties, approved by the presiding judge and served on the parties ex officio. Service of trial plan replaces notices on dates of hearings and other actions provided in it. If the plan sets out obligations to be fulfilled by the party in person, the service of trial plan replaces also the notice to fulfill those obligations.
On the basis of the trial plan, the presiding judge issues orders to prepare the trial. The presiding judge and the court undertake actions so that the case is handled in accordance with the trial plan and dates of hearings scheduled in it, while in the absence of the trial plan, the orders to prepare the trial are issued on the basis of the statement of claim and other pleadings.
Once approved, the court’s ability to modify the trial plan is limited – court may do it only by way of decision if the trial plan has become outdated due to any reasons. Moreover, in the case of considerable need, a new plan may be prepared in which case it is necessary to hold another pre-trial hearing.
After pre-trial hearing and preparation of the trial plan the parties will have it clear what actions will be undertaken in the given case, their timeframes and, most importantly, when the parties may expect resolution of the case. It seems that in view of the limitations to change the trial plan, the objective of the lawmakers will be achieved.
Another novelty affecting the organisation of proceedings is the repealing of Article 217 of the Civil Procedure Code and replacing it with the new rules as to evidence preclusions depending on whether a pre-trial hearing was scheduled or the presiding judge waived it.
If the pre-trial hearing is scheduled, the lawmakers introduced a time limit within which a party may present allegations and evidence to prove its motions or to refute the motions and allegations of the opposing party, which expires once the trial plan is approved. Allegations and evidence reported upon the approval of trial plan are disregarded, unless the party makes it plausible it was impossible to present them earlier or the necessity to present those allegations or evidence arose later. If the presiding judge ordered an exchange of pre-trial submissions, the time limit for filing motions and evidence expires on the same date as time limit for filing a pre-trial submission requested by the presiding judge.
In turn, if the pre-trial hearing was not ordered, a party may present allegations and evidence in support of its motions or to refute the motions and allegations of the opposing party until the closing of the case, subject to adverse consequences which in accordance with the code’s provisions may arise for that party due to playing for time or failure to adhere to orders of the presiding judge or decisions of the court (such as awarding the costs of proceedings against that party).
The speeding up of proceedings is to be achieved also by providing the possibility – if the court so orders – to take written testimonies by the parties and witnesses what will prevent the cancelling of sessions due to non-appearance of the persons summoned.
The changes introduced by the lawmakers are designed to simplify and speed up the court proceedings in civil matters, shorten the waiting time for hearings and avoid long breaks between the hearings and with this regard the changes should be assessed positively. On the other hand, the changes impose additional obligations on the parties, thereby, making the parties “responsible” for the outcome of the case because failure to appear at the pre-trial hearing or failure to present the entire argumentation in a clear, ordered and complete manner right at the beginning of the proceedings may be counterproductive for that party. It may also lead to entering judgments that are unjust due to a party’s presenting arguments in unproper manner due to procedural ineptitude of a party not being represented by a professional attorney. Thus, it appears that an incidental consequence of the new civil procedure rules will be further professionalization of civil procedure and the need for the parties’ cooperation with professional attorneys, even in cases where legal representation is not formally required.
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