New rules regarding the concentration of procedural material


By Act of 16 September 2011 (Dz. U. 2011, no 233, item 1381) a vast reform of general and enforcement proceedings was adopted by the Polish Parliament. The Act entered into force on 3rd May 2012. Among many changes introduced by this Act, an emphasis should be put on the new rules of presenting facts and evidence by the parties. The reform of 16 September aims at introducing a general framework which would facilitate a more efficient concentration of the procedural material. The goal of the new regulation consists in introducing a tool which would apply not only to general examination proceedings, but also to the so-called separate (special) procedures and to the non-litigious proceedings.The new regulation endeavors to encourage the parties to provide facts and evidence at an adequate time (i.e. as early as possible) and thus contribute to a smooth and efficient course of the proceedings.

The goal of the new regulation consists in introducing a tool which would apply not only to general examination proceedings, but also to the so-called separate (special) procedures and to the non-litigious proceedings.

The new rules are predominantly  connected with the system of discretional power of a judge, because they are based on a general premise that the belated procedural material will be disregarded ex mente iudicis, and not ex lege. According to the general rule, the procedural material can be adduced until the end of the main hearing. However, new facts and evidence will be disregarded if they are presented too late except if (1) a party was unable to submit them in due time through no fault of their own, if  (2) the acceptance of the late material will not delay the proceedings or if (3) some other exceptional circumstances arise. Thus, even though the general rule allows to adduce new facts and evidence until the end of the main hearing, the parties risk that their allegations will be disregarded if they do not present facts and evidence at an adequate time, i.e. at the time when, under the circumstances of the case, the need for adducing this material arose. The decision whether the material is adduced at an adequate time will stay with the court. Once the infringement of the rules is stated, the court is obliged to disregard the belated material ex officio.

According to the reform, the goal of concentration can be achieved only on condition that both the court and the parties are sufficiently active. Therefore, the reform places the burden of supporting the proceedings not only on the court but also on the parties. Furthermore, the parties should provide true clarifications of the circumstances of the case, present evidence in support of the factual allegations and perform procedural activities in accordance with the principle of good practices. The non-compliance to this procedural burden will be sanctioned by means of financial responsibility (costs of the proceedings) or by disregarding evidence and factual allegations submitted with a view to delay the proceedings. This regulation is perceived in literature as a harbinger of the ban of abusing procedural rights in Polish civil procedural law.

As far as the court is concerned, it is endowed with material and formal procedural guidance. An adequate use of these tools may significantly contribute to the adequate concentration of the proceedings and might lead to the resolution of the dispute within reasonable time. The court may demand that a written response to the lawsuit be filed at a date set by the court. If the party misses the deadline, the written response will not be accepted. The court may also oblige the parties to file preparatory briefs even before the first hearing and specify the subject matter scope of the briefs and the order in which the briefs should be filed. During the trial, the preparatory briefs may be filed only if the court decides that they are necessary, except for briefs regarding means of evidence. This regulation is aimed at restoring the true significance of the principle of oral proceedings and disallow the excessive submission of written preparatory briefs which often resulted in delaying the proceedings. The court is also supposed to stimulate the parties to supplement and clarify their submissions during the main hearing.

Posted on by Agnieszka Gołąb in Civil Procedure

About the author

Agnieszka Gołąb
Agnieszka Gołąb

Ph.D. candidate in civil procedure at the University of Warsaw. She holds an M.A. in Law and Applied Linguistics from the University of Warsaw. She completed a work placement at the European Commission in Luxembourg. She is a former editor-in-chief of the Warsaw University Law Review.