Much attention has been paid recently to the latest government-sponsored, draft civil procedure amendment, which, piggybacking on the e-bidding solutions regulations, proposes amendments to the COVID-19 acts introducing temporary solutions regarding, among others, the functioning of civil courts.
The draft has just been submitted to the Sejm. However, it must have been intensely debated previously, since the proposed changes only have one day’s vacatio legis. The new rules introduced by the draft are intended to remain in effect up to one year following the end of the epidemic. Therefore, for the time being, there is no telling how long they will last and whether the half-baked solution will prove – as they often do – permanent.
Online Hearing – a New Standard
According to the draft, remote court sessions are becoming the new normal. If this is impossible, a matter can be heard in a non-public court session. However, a physical hearing will only be held if the court deems it “necessary” and if holding it will not cause a health hazard. In addition, a case can only be heard by a panel of one in both instances.
Service by Email – Vague Rules
What seems to raise the most eyebrows is the legislator tackling the issue of service by email. As per the draft, the first pleading in a matter, filed by a professional attorney, must include their firm email address and telephone number. In the absence of an electronic platform system, the court will serve digital images of pleadings, notifications, summons and rulings upon an attorney-at-law, patent ombudsman or the General Counsel to the Republic of Poland to the designated firm email address.
Digital images of pleadings, notifications, summons and rulings will be served on the next business day after the court has posted them electronically. The documents thus served will have the procedural effects provided for in the Code of Civil Procedure for service of certified copies of pleadings, notifications, summons and rulings.
Unfortunately, the wording of the provisions contradicts that of the draft’s justification, reading: “It is also time to enable electronic communication between courts and professional attorneys. If they provide an email address and file a request by way of a pleading, the court will be able to communicate with the attorney using such email.”
What clearly follows from the provisions, however, is the obligation (rather than the possibility, as the justification seems to suggest) to indicate the email address in the first pleading of the matter. To complicate matters further, according to the transitional provisions, the above rules will apply to civil proceedings commenced and not completed prior to the amendment’s effective date.
The draft introduces electronic service of court documents – an issue debated for quite some time – yet it seems that the proposed solution requires a good deal of fine-tuning, to say the least. This is evidenced, among others, by the contradictory wording of the draft and of the justification, and even by contradictions within the justification itself. This suggests that the regulations have been prepared in haste (rather unnecessary, given the current situation in the courts), and conceptual changes made while working out the draft. This is rather alarming, seeing as the new law will have significant consequences.
The current draft poses many practical questions. Does the obligation to provide a firm email address apply to ongoing matters (the literal construction would suggest otherwise), and, if not, can a willing attorney in such matters request document service in such form? How will the technical aspects of such service be addressed (for instance, the issue of return receipts)? What role will court information portals play, in which new functionalities appear, suggesting that they may be preparing for processing such services?
Finally, what is the correlation between the “provisional” regulation and the new electronic document service act, which, introducing systemic changes, provides both public and private entities with appropriate timeframes to prepare for the new obligations in connection with administration and judiciary digitisation?
Both the draft and its justification are silent on these questions. It is hoped that the draft will be reflected on in both houses of Parliament and, if signed into law, it will be a finished product.
The Polish version of this article is also available to view online: WERSJA POLSKA