We have already signalized upcoming amendments of Polish civil procedure law. This brief is dealing with the upcoming institutions that will be binding in commercial proceedings as of November 7, 2019. The newest amendment in the Code of Civil Procedure provides for the return of the separate commercial proceeding, which was abolished in 2012.
New rules on proceedings included in the general regulations of the civil proceedings will be applicable also in commercial procedure, unless they interfere with commercial regulations. Thus, the court is at liberty to request the parties to participate in the preparatory meetings and together plan the proceedings by creating the so called 'trail plan'.
According to the amendment, parties in the civil proceedings will have limited right to adduce evidence other than documents e.g. witness or party evidence. Claims can be shown almost only as documents, except from the cases in which a party proves that document cannot be provided for reasons beyond their control. Having the projected amendments in mind, entrepreneurs should take care that all transactions will be proved in writing, or even via email. Completing the service or submission of the unpaid order by the contractor cannot be demonstrated in other way.
The most difficult change seems to be the return of preclusion of evidence in the form we know from the old commercial procedure. The parties will be required to cite all assertions and evidence in the first pleadings. A new solution is to grant a party not represented by a professional representative at least one week to invoke all statements and evidence, counted from the moment the court receives relevant instructions. Assertions and evidence invoked in violation of these principles shall be omitted, unless the party proves that their appointment was not possible or that the need to appoint arose later.
Due to the increase in the complexity of the new procedure described above, which results from greater procedural rigor, a person who is not an entrepreneur but whose case is subject to these special provisions according to the definition of a business case modified by the amendment, as well as an entrepreneur who is a natural person, will be able to submit an application to conduct the case according to general principles. Such a conclusion will be binding on the court.
From the restrictions of defense possibilities known to civil procedure before, the legislator restores the exclusion of the possibility of a counterclaim.
The amendment also introduces the structure of evidence contract unknown to the Polish legal system. By its power, the parties will be able to exclude certain evidence in the proceedings from a specific legal relationship arising under the contract. The court will not be able to admit evidence exempt from contractual evidence. The facts, which would be proved by evidence excluded by such a contract, the court, taking into consideration the overall circumstances of the case, will be able to determine on the basis of the parties' claims. While this institution finds practical application, it is difficult to imagine its effects, for example, in a situation where the parties decide to cover the evidential exemptions very broadly. The taking of any evidence would then become inadmissible and the court would have to rule only on the basis of the parties' opposing claims.
Another interesting novelty characterizing the proceedings in commercial cases is the introduction of the obligation to indicate the e-mail address of the party in the lawsuit or the first procedural letter lodged after the delivery of a copy of the statement of claim. In the absence thereof - submitting a statement that the party does not have such an address. Failure to do so will result in a lack of a formal letter and will prevent the case from being passed correctly. In the legislator's view, this is to improve the court's communication with the parties.
It is also worth mentioning the restoration of giving the judgment of the court of first instance awarding in cash or exchangeable items the value of enforceable collateral without giving it an enforceable clause. The return to this solution should be assessed positively, even taking into account the possible negative consequences inherent in such a construction. It is worth bearing in mind the long waiting time for final judgments, as well as the well-known practical problems with obtaining security for claims before initiation and in the course of proceedings.
For matters initiated and not completed before November 7, 2019, which according to the existing regulations would be subject to consideration in commercial proceedings, the provisions on these proceedings shall not apply. The transitional provisions do not prejudge, however, how the pending cases to which the status of economic disputes are already given by new provisions are to be resolved.
The changes proposed by the legislator in the amendment to the Code of Civil Procedure are a response to the continuous increase in commercial cases filed to the courts. They also aimed to streamline, accelerate and facilitate processes between entrepreneurs by restoring separate proceedings in business matters in Poland. The introduction of stricter rules of evidence preclusion and setting time limits for the courts to hear cases (no later than six months from the date of submission of the statement of claim) seem to be reasonable ways to achieve the set goal, but may be easy tool to dismiss the case on formal basis without examining the merits. Only the clash of the above ideas with reality and the practice of courts will verify their effectiveness.