As of 14 March 2024, further provisions of the Act of 7 July 2023 amending the Civil Procedure Code, the Law on the System of Common Courts, the Criminal Procedure Code and certain other laws (the “Amendment”) will come into force. Their main purpose is to make permanent the solutions already in place in the civil procedure (with some exceptions), but under the transitional provisions of the Law of 2 March 2020 on Special Solutions for Preventing, Counteracting and Combating COVID-19, Other Communicable Diseases and Emergencies Caused by Them (the “Covid Law”).

Below we present the key changes from the perspective of civil litigation practice – even more important because they will apply to proceedings already underway. Thus, as of 14 March this year, generally in any proceedings to which the provisions of the Civil Procedure Code apply, securing participation in a remote hearing will require prior action. It will be possible to effectively object to certain activities which are nowadays conducted remotely, and any professional attorney will be required to have an account on the information portal if he or she has not already set up one.

Service through the information portal transferred to the Civil Procedure Code

Service of court letters through the information portal, a solution previously implemented under the Covid Law, will be a permanent solution set forth in the Civil Procedure Code. It will generally become mandatory for professional attorneys (advocates, attorney-at-law, patent attorneys) and certain other entities (public prosecutors, pension authorities and the General Counsel to the Republic of Poland). However, this type of delivery will not be applicable to:

• letters served with copies of the parties’ submissions or other documents not originating from the court - unless the court has their electronic copy;
• letters which cannot be delivery through the information portal (such as certified copies of judgments or enforcement titles).

The detailed procedure and manner of service of court letters through the information portal are to be determined by a regulation of the Minister of Justice, acting in consultation with the minister responsible for computerisation.

Delivery through the information portal is intended to be an exception to delivery “through an ICT system”. However, this system does not generally exist (apart from a few exceptions concerning, among others, registry proceedings, land and mortgage registry proceedings and electronic proceedings by writ-of-payment), so this exception will remain the rule, at least for the time being.

Professional attorneys’ obligation to have accounts on the information portal

In view of the introduction of service through the information portal to the Civil Procedure Code, the Amendment – for the first time explicitly – Imposed an obligation to have an account on this portal on, among others:

• practicing advocates, attorneys-at-law and patent attorneys;
• court-listed experts;
• General Counsel to the Republic of Poland.

The Supreme Court noted that the applicable provisions of the Covid Law did not explicitly stipulate that counsels must have an account on the information portal, which opened the possibility of challenging the effectiveness of service through the portal. Under the Amendment, this will change.

Remote hearings stay for good in the Civil Procedure Code

A provision on remote hearings, that until now have operated under the Covid Law, will also be introduced into the Civil Procedure Code. Provided that the nature of the planned activities allows it and the rights of the parties are protected, a remote hearing can be held by order of the presiding judge issued:

• ex officio – In this case, the participant should notify the court of his/her intention to participate in the hearing remotely no later than 3 business days before its scheduled date;
• at the request of the person who is to participate in the hearing, submitted within 7 days of delivery of the notice or summons to the hearing. If the request is granted, the remaining participants – If they also wish to participate in the hearing remotely – should notify the court of their intention in the manner described above.

In the absence of the above request or notification, the participant will be obliged to appear at the courthouse in person (which may be an impediment to holding hearings entirely online).

When ordering a remote hearing, the presiding judge may also stipulate that a certain person may participate in such a hearing provided he/she is in the building of another court. On the other hand, if the hearing is conducted in camera, a remote hearing is generally inadmissible – unless all participants of the hearing are in the court buildings. It seems that this solution will fundamentally limit the possibility of remote hearings in cases heard in camera.

A person participating in a remote hearing, who is outside the court building, will be obliged to inform the court of his/her location.

At the same time, it will still be impossible to effectively perform some procedural actions at remote hearings, for example the filing of a secondary intervention, raising a charge of set-off or most amendments to the claim. In mediation proceedings, a hearing can be held remotely only with the consent of both parties.

In addition, the Minister of Justice is to announce in the Public Information Bulletin the required technical standards of software and hardware necessary to participate in remote hearings. This should lead to the standardisation of the requirements and capabilities of the programs (applications) used by the courts, which seems particularly important for practitioners.

Evidentiary proceedings at remote hearings

The amendments regarding remote hearings are also reflected in the manner of conducting evidentiary proceedings. The party will now be able to:

• indicate in the motion to admit evidence whether it wishes the evidence to be taken in a remote hearing, which will be decided by the court taking into account the nature of the evidence;
• object to the remote questioning of a witness or party by filing an objection within 7 days of learning of the intention to conduct such questioning. An effective objection will be binding on the court and will oblige it to summon a witness or party to appear in person in the courtroom;
• file a motion for an action with the participation of an expert in the courtroom – but it will not be binding on the court (as in the case of a witness and a party). At the same time, however, the court will obligatorily order activities to be performed at the courtroom when the reliability of an expert opinion presented at a remote hearing raises doubts.

Reviewing case files through an information portal

The Amendment will allow courts to provide parties and participants of proceedings with access to case files and copies or excerpts from those files through the information portal. In the same way, the court will also be able to submit the files to a court expert for the purposes of drawing up an expert opinion.

Webinar

Piotr Białach and Szymon Jelonek of the Litigation and Arbitration practice group will speak more about the practical implications and potential difficulties of the Amendment during the webinar on 5 March. More information available on the webinar website (the webinar will be held in Polish).