Courts Will Remain Online for Longer – Procedural Changes Fast Approaching
The Sejm has voted in favour of the draft “temporary” review of the civil procedure, which we addressed in January. Technically, this is an amendment to the Act of 2 March 2020, rather than to the Code of Civil Procedure, and the new solutions will apply for one year after lifting the state of epidemic hazard.
Court hearings will, in principle, be held remotely, and the presence of participants, including judges, at the courthouse will not be required. However, if a party or a summoned person demonstrates, at least seven days before the court date, that they do not have a suitable technical device, they may participate in the remote hearing at the courthouse.
Traditional hearings will be allowed if necessary (at the discretion of the court president) and if there is no epidemic threat. However, if both a remote hearing and a traditional hearing are out of the question, the court will refer the matter to a non-public hearing.
The vague assessment criteria and a deal of discretion have raised concerns there is possible room for abuse. There is also apprehension regarding the consequences of technical glitches. A year’s worth of online hearing experience has painted a fairly clear picture in that respect. The new regulations will surely require attention and diligence on the part of everyone concerned.
Also noteworthy is that a party seeking a cassation, even before the new regulations are signed into law, may not be allotted a court date before the Supreme Court, because the court will not be bound by the cassation hearing request, even if there is a material legal issue.
Further, according to the act, cases will, in principle, be heard by one judge (including in the second instance). This rule will not apply to insolvency or restructuring cases.
The version of the act adopted by the Sejm features a slightly different concept of electronic delivery, which was found highly controversial when announced. The new rule will be for the court to deliver digital pleadings, notifications, summons and rulings to the parties’ professional representatives by uploading them to the court’s information portal. The pleading delivery date will be the date on which the recipient reviews it on the portal. Otherwise, it will be presumed delivered 14 days after being uploaded. Traditional deliveries will only be necessitated by the pleading’s nature. Obviously, deliveries via the portal will have legal consequences, e.g. in terms of deadlines to seek a remedy.
The draft no longer features the previously contemplated email delivery. However, the act still obliges the parties to provide an email address and a phone number in the first pleading filed in a given matter by a professional representative. They will also be obliged to file pleadings, together with their digital copy and a digital image of the appendices, on an electronic data carrier (unless they are sent directly to the opposing party’s representative). Failure to do so will constitute such pleading’s formal defect.
The amendment will affect matters already in progress. The above obligations on professional representatives apply to pleadings filed in a given matter after the act’s effective date. The wording of the new regulations raises one concern, though. Does the obligation to provide an email address and a telephone number in fact apply only to the first pleadings filed by a given counsel, or is each pleading filed after the act’s effective date supposed to be considered “first”? The recommended solution will perhaps be providing this information in each subsequent pleading filed after the amendment.
Justyna Dereszyńska, Senior Associate at Squire Patton Boggs
Last Updated on May 5, 2021 by Karolina Ampulska