With certain exceptions, Polish law does not impose an obligation to use attorneys or legal counsel in court cases. However, are there reasons why entrepreneurs (both sole proprietors registered in CEIDG and companies) should seriously consider using a professional attorney in a court case? In this article, we outline some of the reasons why such assistance may be needed.
Business proceedings
As of November 2019, the law governing court proceedings (the so-called procedural law) in civil disputes introduced special rules for handling business cases (i.e., primarily disputes between entrepreneurs). This was a return to the concept that such cases should be conducted under different rules (previously, such separate rules were in effect from 1989 to May 2012).
How do commercial cases differ from ordinary civil cases?
They are conducted faster and take less time (at least in theory).
- There are additional formal obligations on the parties to the dispute.
- The evidence that can be used by the disputing parties is limited.
- The litigants are required to be more disciplined and precise in formulating their pleadings.
How long does a business case take in court?
The duration of a court case is affected by many factors – including the subject matter of the dispute, the amount of evidence to be taken, or at least the case load of individual judges. In order to speed up the settlement of business cases, the legislator has introduced several special rules.
Some of them relate to the manner in which courts resolve cases (e.g., Article 4588 § 4 of the Code of Civil Procedure obliges the presiding judge and the court to take steps so that the case is resolved within six months of the filing of a statement of defense). Others – introduce restrictions and obligations for the parties to the proceedings. Below are some of them.
Claims and evidence
The parties to the dispute should exhaustively present their arguments in the first pleadings filed in the case. The plaintiff is obliged to cite all claims and evidence already in the statement of claim, while the defendant is obliged to do so in the response to the statement of claim (Article 4585 § 1 of the Code of Civil Procedure). If, in the course of the case, the need for new assertions and evidence arises, and it was not possible or necessary to invoke them earlier, the party should present them within two weeks from the date when their invocation became possible or the need for their invocation arose (Article 4585 § 4 of the Code of Civil Procedure).
Precise definition of demands
In order to speed up the adjudication of cases, the legislator has introduced a ban on fragmentation of demands. As a rule, a party making a demand may not formulate new claims in the course of the proceedings instead of or in addition to the existing ones. Only in the event of a change in the circumstances of the case can a claim be amended, and even then only to the extent indicated in the regulations.
Also excluded is the possibility to add other persons who should or can participate in the case as defendants. Defendants in business cases, on the other hand, have been deprived of the possibility of filing counterclaims, which is a limitation on their ability to defend themselves.
Evidentiary limitations
Evidentiary limitations have a significant impact on the conduct of business cases. The primary evidence in these cases is a document. According to Article 45811 of the Code of Civil Procedure, an act of a party, in particular a statement of will or knowledge, with which the law links the acquisition, loss or change of a party’s entitlement with respect to a given legal relationship, may be proved only by a document referred to in Article 773 of the Civil Code, unless the party demonstrates that he cannot produce the document for reasons beyond his control.
In turn, the possibility of using the testimony of witnesses has been limited to situations where, after exhausting other means of evidence or in the absence thereof, facts relevant to the outcome of the case remain unexplained.
The above evidentiary limitations should be taken into account by entrepreneurs already when entering into business transactions with other entrepreneurs. All legally significant activities should be documented in case they need to be proven in the event of litigation.
Summary
Some of the specific regulations in force in business cases, signaled above, lead to the conclusion that entrepreneurs already at the time of entering into contracts with counterparties, should introduce solutions to secure the possibility of asserting rights and resolving disputes before the court. One of them will be to document all legally relevant actions (in writing, by email, text message, instant messaging, etc.).
On the other hand, in the event that litigation becomes inevitable, it is very important to analyze the case carefully from the very beginning of the case from a legal perspective and to plan the tactics for handling it. Mistakes made at the beginning of the case can have irreversible consequences – including the possibility of losing the case.
