The Polish civil procedure applies the principle of two-instance examination of cases. This means that a person who has lost a case may file an appeal against a judgment of the court of first instance. Defects indicated in the appeal will be examined by the court of second instance.
A cassation appeal, on the other hand, is an appeal against decisions of the courts of second instance and is brought before the Supreme Court. However, a cassation appeal may apply only to certain types of civil cases. In addition, the applicant must convince the Supreme Court that the cassation appeal in question should be accepted for examination, which is the case especially if the examination of the appeal is important for the development of Polish law or precedent-setting for the resolution of other similar cases.
Filing a cassation appeal
Cassation appeals in contentious proceedings may concern three types of decisions of second instance courts:
- the judgment,
- the rejection of the lawsuit or,
- the discontinuance of the proceedings.
A cassation appeal must be filed with the court which issued the contested decision within two months from the date of service of the decision including a statement of reasons. In commercial cases, a cassation appeal may be filed only if the value of the appeal (e.g. the amount of money contested in the cassation appeal) is at least PLN 50,000. A cassation appeal must be prepared and signed by an attorney at law (an advocate or a legal adviser). In intellectual property cases, a patent attorney may also be involved.
The cassation appeal is subject to a fee according to the same rules as the filing of a lawsuit. In cases for payment, it will therefore be 5% of the amount in dispute.
Impact of the filing of the cassation appeal on the enforcement of the judgment
A party who has lost a case may request the court of second instance to issue an order effective until the completion of the cassation proceedings:
- suspending the enforcement of the judgment;
- making the enforcement of the judgment conditional on the payment of a "deposit" to the court by the party who has won the case;
- stopping the sale of assets by the court bailiff; or
- withholding the release of the amounts obtained by the court bailiff to the party who has won the case.
The application will be granted if the court of second instance considers that the losing party is at risk of suffering irreparable damage.
Requirements to be met by a cassation appeal
Firstly, a cassation appeal must state the cassation grounds and their reasoning. The cassation appeal may be founded on the grounds of (i) misinterpretation or misapplication of substantive law; or (ii) infringement of the rules of procedure. Allegations of procedural violations must be accompanied by an explanation of how the violation in question materially affected the outcome of the case. The Supreme Court may take into account ex officio only the invalidity of the proceedings. In all other situations, the Supreme Court will only examine the violations listed in the cassation grounds of the appeal.
A cassation appeal cannot be based on allegations of erroneous establishment of facts or erroneous assessment of evidence. The Supreme Court is obliged to assume that the court of second instance has correctly established the facts. Furthermore, it is not permissible in a cassation appeal to submit new facts or evidence. This is related to the extraordinary nature of a cassation appeal. The Supreme Court only examines specific procedural failures or errors in the interpretation of the law.
Secondly, the cassation appeal must demonstrate one of the following grounds:
- that the handling of the case by the Supreme Court will have a significant impact for the development of Polish law. The legal issue important for the development of Polish law must be connected with the case in question. The need to answer the legal issue must be justified by the divergent jurisprudence of Polish courts or by the originality of the problem that has arisen;
- that the cassation appeal is manifestly well-founded (the Supreme Court very rarely upholds cassation appeals based on this ground); or
- invalidity of the proceedings.
Two stages of the analysis of a cassation appeal
The first stage in the Supreme Court's analysis of a cassation appeal is called the "pre-trial" stage. At the pre-trial stage, the Supreme Court decides whether to accept the cassation appeal for further examination. At this stage, it decides whether:
- the cassation appeal raises an issue important for the development of Polish law; or
- the reasons for the cassation appeal are evidently justified or the invalidity of the proceedings require further analysis.
The majority of cassation appeals do not pass the scrutiny at the pre-trial stage and are not accepted for further examination.
Possible resolutions
If the cassation appeal is accepted for consideration, the Supreme Court will further examine the case. The cases accepted by the Supreme Court are resolved by judgment. The Supreme Court can do any of the following: (i) dismiss the cassation appeal, (ii) set aside a contested decision in whole or in part and refer the case back for reconsideration by the court of first or second instance, (iii) modify the decision.
The court to which the case is referred for reconsideration is bound by the Supreme Court's interpretation of the law with respect to that case.
Statistics
For example, in 2023, in civil and commercial cases, the Supreme Court: (i) decided that 148 cassation appeals did not meet the formal requirements and rejected them (ii) did not accept for further examination 2,177 cassation appeals at the pre-trial stage (iii) dismissed 357 cassation appeals accepted for further examination (iv) upheld 318 cassation appeals by setting aside the decision and referring the case back to the court of first or second instance (v) upheld 10 cassation appeals by modification of the decision. Thus, only 1 out of 10 cassation appeals filed were ultimately upheld by the Supreme Court.
According to statistics, the pre-trial stage in the Supreme Court usually takes more than six months, whereas it can take up to several years to consider an accepted cassation appeal.
The chances of successfully bringing a cassation appeal largely depend on the circumstances of the specific case. Therefore, in order to assess whether and which arguments could be successfully raised in a cassation appeal, it is necessary to first conduct a detailed analysis of the case and the legal issues involved.
Originally published 29. Mai 2024
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.
