I. Introduction
Sometimes disputes cannot be resolved amicably, through mediation or negotiations and end up in the Courts of Poland.
It is therefore worth knowing what the court system looks like in Poland and what the principles of litigation.
II. Principles – Litigation / Poland
1. What are the forms of dispute resolution in Poland?
Disputes in Poland may be resolved before:
- common courts (by default)
- arbitration courts (if agreed by the parties)
- before registered mediators (if agreed by the parties).
2. What are the court types in Poland
Justice system in Poland is consists of Supreme Court, common courts, administrative courts and military courts.
Most of the cases, incl. commercial litigation, civil litigation and criminal defense is performed before the common courts, i.e.:
- Regional Courts (courts of I instance for small claims),
- District Courts (courts of I instance for other claims, and court of appeal for small claims)
- Courts of Appeal (court of appeal for other claims).
3. How many instances are available in litigation?
As a general rule, all judicial proceedings are of two-instance. Right to appeal to the higher-level court is guaranteed by the principal rule of Polish Constitution.
4. What is the number of judges hearing the case?
As a rule, cases are heard by a single-judge in the first instance and by a three-judges in the second instance (appeal proceedings).
5. What is the language of court proceedings?
International disputes before Polish common courts struggle with significant inconvenience - all the materials, incl. emails, contacts, testimonies etc. - must be sworn translated into Polish language. This significantly increases the cost and slows down the proceedings.
The court proceedings, incl. court hearings are conducted in Polish language, and if the participants do not speak Polish, an interpreter of the relevant foreign language needs to be present.
Above rules do not apply to arbitration proceedings - as here the parties may freely decide on the language.
6. What laws do Polish courts apply?
Polish courts apply the procedural laws in force in Poland from the CCP or international agreements. The application of substantive law is more complicated. The rules on the question of which substantive law to apply are called conflict norms. The main sources of these rules are multilateral and bilateral agreements. In the absence of such an agreement, the Law of February 4, 2011 Private International Law
However, the parties may also choose the applicable law. This is the case with respect to most international agreements.
7. When does a Polish court have jurisdiction?
When planning a litigation with a "Polish element," a foreign party must examine when Polish courts have jurisdiction to hear the case, in other words, when the case can be resolved in Poland.
The most basic principle is that Polish courts will recognize a case in which the defendant is domiciled or established in Poland. Consequently, a Polish party, in principle, can be sued in Poland. However, Polish courts will still have jurisdiction in certain other situations. This is important because a foreign entrepreneur is exposed to the risk of litigation in Poland, even if it has not conducted business in the country, but, for example concluded only a contract with a Polish contractor.
Even if the defendant does not reside or conduct business in Poland, the case should be resolved in Poland in cases concerning:
- obligations performed or to be performed in Poland,
- disputes concerning non-contractual obligations (e.g., torts) that arose in Poland,
- disputes concerning the activities of branches and representative offices of an entrepreneur located in Poland,
- disputes over monetary rights in cases in which the defendant has assets in Poland that are of a significantly higher value than the amount in dispute,
- disputes over a property located in Poland,
- labor disputes in which an employee in Poland for a foreign entrepreneur
As mentioned above, Polish courts in some cases have so-called "exclusive jurisdiction." This means that such a case cannot be recognized outside Poland. The two most important examples of such a situation are disputes over real estate located in Poland and registration proceedings concerning legal persons or entities based in Poland.
However, the CCP recognizes party autonomy to some extent scope. As a result, parties may enter into so-called "choice of court agreements" or include such a clause in the main contract, except in cases of exclusive jurisdiction.
8. Cost of Litigation in Poland
Under Polish procedural law, there are two main types of fees / expenses that are incurred by the parties:
- court fees; and
- litigation expenses;
- legal fees.
9. Court fees
Launch of commercial disputes or civil disputes before Polish courts requires payment of the court fee which amounts to 5% of the claim value.
In commercial cases where the debtor has confirmed (recognized the debt amount) the plaintiff may benefit from discounted court fee of 1,25% of the claim value.
10. Litigation expenses
Litigation expenses include inter alia fees of experts, translators, and reimbursement for witnesses. Those fees are paid by the Court, however parties may be required to provide relevant advance payment.
11. Legal fees
Law Firm or professional attorney fees are to be freely agreed by each party. There are no major restrictions what can be agreed between client and the Law Firm in Poland. Attorneys and Barristers are however not allowed to work based on rule no win no fee.
12. Attorney / Barrister / Litigator - litigation lawyers in Poland
As per Polish law - attorneys (radca prawny) and barristers/ counsels (adwokat) are allowed to represent the clients before Polish Courts. There is no bigger difference between barristers and attorneys - it is mainly historical and recently merely related to admission to different association (Bar Association or Attorneys Association). Both - attorneys and barristers - work in as commercial litigator/s in the same Law Firms.
III. Preparation for Litigation in Poland
Prior to filing a lawsuit to the court of law, the plaintiff shall:
- collect the evidence,
- evaluate risks and expenses,
- develop litigation strategy.
Above is particularly important in court dispute/s involving contentious issues (e.g. IP disputes).
1. Cease and desist / demand for payment notice of dispute
In commercial disputes, it is often a formally requirement that the plaintiff, prior to starting judicial process, attempts to resolve the dispute on the out of court basis.
As a result, most commercial disputes in Poland start with pre-judicial:
- notice of dispute,
- cease and desist letter,
- demand for payment, or
- any other communication that encourages the opposing party to resolve the dispute amicably.
2. Securing a claim
It is not uncommon that in the face of impending litigation, the opposing party will attempt to divest itself of all its assets in order to frustrate the future enforcement of a potential court decision issued in your favour. Of course, there are certain provisions of Polish law that allow you to prevent such situations and give you the opportunity to act preventively. In short: by securing claims, the court will "freeze" the counterparty's assets or charge them in order to ensure that you receive your claim to the greatest extent possible when the court issues a final judgment.
3. How will I find out about the case pending against me?
The Polish jurisdiction does not offer a uniform system where one can one can check whether a person has been sued. Each court keeps a register of pending cases. Consequently, if a potential defendant knows the potential location of the dispute, you can get the information directly from the specific court.
However, the defendant can expect a possible dispute from pre-trial correspondence, such as summonses for payment, complaints about the quality of service, set-off notices, etc. It is crucial to collect all such documents and begin preparing for the defence. If there was no prior information about an emerging dispute, it is possible that the foreign entrepreneur may learn that he has been sued before a Polish court only from a letter informing him that a lawsuit has been filed along with a court document. In such a case, time is very short for the defendant, and it is necessary to mount a defence quickly.
IV. Start of Litigation in Poland
1. Lawsuit and launch of litigation proceedings
Ideally the lawsuit should contain:
- facts description
- legal reasoning
- all available arguments
- and available motions to admit evidence.
Evidence in a form of document or other tangible form should be attached or enclosed to the lawsuit. With respect to witnesses, their names and addresses shall be indicated in the lawsuit so they can be summoned by the court.
If any evidence is not listed, the plaintiff may have difficulties introducing it later, unless the delay was objectively justified or admission is separately allowed by the court.
2. Defense of the counterparty
Once the lawsuit is properly lodged to the court, the copy of it will be delivered to the defendant, indicating a period within which the defendant must respond — in practice almost always 14 days (however the court may provide a longer period). The response / defense shall contain all arguments of the defendant and all motions to admit evidence.
V. Litigation Process
1. Court hearings
After the lawsuit and the defense have been filed, the Court sets the date and hour of the first hearing and notifies the parties in writing. Depending on the court and its location in Poland, the time between filing a response and the date of the first hearing is usually 2–9 months (the longer period applies to bigger cities).
Pre-trial hearings not available
In Polish commercial litigation and arbitration there is no institution of pre-trial hearings. If a case is brought, it always goes to trial and ends with a court decision. An exception may be the withdrawal of an action or the conclusion of a settlement by the parties during the trial.
Number of court hearings
In each case, the court generally sets several trial dates, depending on the number of witnesses and the complexity of the case. These dates are often far apart and do not occur day by day (intervals of several months).
2. Timeline of litigation
First, all witnesses are heard, and only at the end can the court hears the parties. Finally, before closing the litigation attorneys have time for closing speeches.
After this the court formally closes the hearing and issues the judgment.Commercial litigation in Poland, depending on how complex the case is, takes couple of months (6 months) to up couple of years (even 5 years in complicated court disputes requiring witness experts).
3. Evidence
The most common evidence in trials in Poland are documents, official documents, witness testimony, party testimony, expert opinion.
Hierarchy
There is no hierarchy in terms of evidence, however, in practice, courts treat evidence from party testimony as of lesser value, as the parties have a direct interest in the outcome of the case.
Subpoena to present document
Courts may also require (demand) a party and other persons to provide a document if such is in their possession.
Expert Witness
In Polish litigation – expert witness may be only appointed by a judge and must be as independent and impartial as the court itself.
Private expert witnesses may be engaged by the parties to provide expert opinion but such opinion would be of lower evidentiary value for the court (in comparison to expert option provided at the direct order of the court).
Other evidence
Polish civil procedure does not limit evidentiary measures. As a rule – anything could potentially serve as evidence, this includes e-mail, photos, videos, audio recordings, blood samples, etc.
4. Settlement
At the beginning of each case, the judge encourages the parties to reach an agreement or enter into mediation.
The parties to the dispute can settle at any time before the judgment is issued (at both the first and second instance).
Settlement may be made either:
- before the court - where the terms of the settlement are recorded in the minutes of the hearing and signed by the parties or their representatives, or
- outside the court - where the terms of the settlement shall be delivered to the court for approval; in such case the plaintiff shall also request for case discontinuation (otherwise the litigation will proceed despite the concluded settlement).
One of the benefits of the settlement is that the plaintiff will be reimburse all or part of the court fee (depending on the timing of the settlement and the progress of the proceedings).
VI. Appeal
1. Request for written motives of the court ruling
Within 7 days from issuance of the judgment, a party may request a written justification (motives).
If the party intends to appeal the judgment, it must apply for written motives, otherwise appeal will not be permissible.
2. Deadline for appeal
When the written motives are delivered the party has 14 days to file an appeal to the court of second instance.
3. Court fee for appeal
The appeal is again subject to a court of 5 % of the case value. The fee as to be paid in advance within the 14 day deadline.
4. Appeal proceedings
The procedure before the court of second instance is similar to that before the court of first instance, except that the court of second instance does not carry out the evidence in its entirety but may only supplement it. There is usually only one hearing after which a decision is made.
The judgment of the court of second instance is final and cannot be appealed against.
VII. Enforcement of judgements
As a rule, as long as the judgement is not final (i.e., the appeal process is in progress) the judgement is not enforceable, unless the court furnishes it with immediate enforceability clause.
The enforcement clause is usually issued at the request of the plaintiff who is able to prove that absence of immediate enforcement proceedings may be detrimental.
Regarding the implementation of Poland's verdict in other countries, with regard to EU Member States, the enforcement and recognition of judgements is regulated by the Brussels I bis Regulation. It provides for the automatic enforceability of judgments issued in another Member State, without prior confirmation in separate proceedings.
As for other countries, judgements made in Poland are recognised and enforced according to multilateral international agreements and bilateral international agreements. In the absence of an agreement, recognition and enforcement are subject to exequatur proceedings according to the law of a given country, usually in compliance with the reciprocity principle.
VIII. Cassation Appeal to the Supreme Court
Moreover, in some cases, a party may file a cassation appeal to the Supreme Court of Poland. Supreme Court does not examine evidence or hear witnesses, but only adjudicates on the basis of facts already established in previous court instances. Accordingly, the Supreme Court does not constitute the third instance of civil procedure in Poland. Rather, it is an "extraordinary" court, hearing only some of the cases provided for in the Code of Civil Procedure.
For example, a cassation appeal is inadmissible if the value of the case is below PLN 50,000.
IX. Third party funding of dispute resolution
Litigation or arbitration funding is not overly popular in Poland, nonetheless it exists mainly with regards to major disputes or class actions.
X. European Payment Order and European Enforcement Order
Polish procedural law recognizes European provisions for expediting claims in the EU. First, if the enforcement title meets the requirements for a European enforcement order, the creditor can apply to the court for a special certificate. With such a certificate, he can carry out enforcement throughout the European Union without having to recognize the order in the debtor's country. This procedure is reserved for uncontested claims.
Another way to facilitate enforcement is to apply for a for a European payment order. It is used for the enforcement of European cross-border claims. However, not all types of claims are allowed under this procedure. The creditor must prove that the claim is justified. If the court finds that all the conditions for issuing a European payment order have been met, issues the order after an ex parte proceeding, i.e., without giving the defendant an opportunity to present his arguments. However, the debtor may later file an objection. If the creditor wants to enforce the order in Poland, it is relatively easy. All he needs to obtain is confirmation from the court.
The rules for these two types of proceedings are uniform throughout the EU. After obtaining an enforcement order, the creditor can initiate enforcement proceedings before a bailiff.
XI. FAQ - Litigation and Dispute Resolution in Poland
1. Do I have to appear in person in court in Poland to be heard as a party or witness?
No necessarily, it is currently possible to be heard remotely by videoconference or to give written testimony. In the case of an online hearing, a link is sent by the court with instructions to connect.
2. Is it possible to obtain reimbursement of legal costs?
Yes, if the case is won in its entirety, the court will award to the winning party from the other party the reimbursement of the costs of the trial and the reimbursement of the costs of representation by a professional lawyer in the amount regulated in the Regulation of the Minister of Justice. It is possible to apply for multiplication of this rate, especially in complex cases and where the workload of the litigation lawyer was above average.
In the case is only partially won, the costs are reimbursed only in proportion.
3. Is representation by a professional attorney before a court in Poland mandatory?
In most cases, no, but it is highly recommended.4. Does the court take evidence ex officio, or do I have to prove all my claims myself?
Polish civil proceedings are based on adversarial rule which means that judges / courts role in evidence proceedings is very limited. When bringing a claim, it is therefore important to provide supporting evidence. Burden of proving facts lies on the person who gains legal benefit from that fact (i.e., as a rule - plaintiff).5. Is there a system of precedent in Poland?
Polish judicial system is a typical continental system of law, therefore, as a rule, there is no precedent law in Poland. Although the Polish legal system does not recognize or provide for precedents, attorneys and judges often make reference to 'established line of jurisprudence', which is formed by individual judgments issued by successive courts. It is this established line of jurisprudence that plays a very important role in the Polish legal system each time a dispute is resolved. This is despite the fact that this line of jurisprudence does not have a binding character and any court, including a court of first instance, may ignore it when resolving a dispute and issue a ruling completely different from the commonly accepted ones. In doing so, it may itself initiate a new line of case law. Of particular importance are the court rulings issued by the Supreme Court in Poland.6. When the court ruling is enforceable?
As a rule, court judgments are enforceable after the judgment becomes final and the court issues an enforcement clause. The judgment becomes final and binding after lapse of the deadline for appealing. After that the party may request the court to issue the enforcement clause.
7. What documents do I need to start a case in Poland?
If you are a company you will need: 1. corporate excerpt from your company register, 2. power-of-attorney and 3. supporting evidence.
8. I have received the lawsuit from Poland – do I have to file a defense pleading?
Yes, if you don't answer the lawsuits within the given deadline the court may issue the judgement in default to your detriment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
