Back to the past part 4 – Planned differences in proceedings on taking evidence

Stricter deadlines are planned for referring to assertions and evidence

According to the Bill, in commercial proceedings, the plaintiff will be required to make reference to all assertions and evidence in the statement of claim, while the defendant will be required to do so in the statement of defence. The assertions and evidence referred to below will not be taken into account unless the party substantiates that it was not possible to present them or that the need to refer to them arose later.

These exceptions were limited with respect to the principles previously in force in commercial proceedings. It was then possible to make reference to new assertions or evidence if this did not require the proceedings to be extended. For example, it was admissible to specify a new witness if a court expert had not yet been appointed in the case to prepare an opinion.

New issues – agreement on evidence

The Ministry of Justice is planning to introduce a third type of procedural agreement (alongside the agreement on the competence of the court and the agreement on jurisdiction), namely an agreement on evidence.

According to the Bill, the parties will be able to agree to the exclusion of specific evidence in commercial proceedings. The agreement on evidence is only envisaged for commercial matters. In matters considered in ‘ordinary’ proceedings, the parties will not have such a possibility.

The parties will be able to rule out all evidence admitted by the civil procedure. The Ministry of Justice does not anticipate any restrictions in this matter. This means that the parties will be able to rule out e.g. evidence from the testimony of witnesses, the examination of the parties, the expert’s opinion and even evidence from documents.

The court will not be able to admit evidence ruled out by the agreement on evidence ex officio (namely without the activity of either party). The court will be able to establish the facts that were supposed to be demonstrated with the evidence excluded by the agreement on evidence on the basis of the assertions of the parties, taking into account all of the circumstances of the case.

The agreement on evidence is to be concluded in writing, otherwise null and void (an oral agreement will not be valid) or orally before the court. The conclusion of an agreement on evidence on condition or with the reservation of a deadline will mean that the agreement will be invalid.

The ability to refer to the invalidity of an agreement on evidence will be limited in time, i.e. to the hearing at which the counter-party refers to the agreement in question and if the reference was made in a pleading, it will be possible to raise an allegation of invalidity or ineffectiveness of the agreement in the next pleading or at the next hearing.

The Ministry of Justice has envisaged the circumstance of several agreements on evidence being concluded by the parties. In such a situation, in case of doubt, it will be accepted that a later agreement upholds the provisions of an earlier agreement that can be reconciled with it.

An agreement on evidence may be difficult to apply in practice. It may be risky for both parties to rule out a certain category of evidence in advance. It is not known what the dispute will apply to before it arises. After the dispute arises, it may be difficult for the parties to reach an understanding on the categories of evidence that they agree to exclude from the proceedings.

Witness only as a last resort

The draft Act will be a real revolution in the proceedings on the taking of evidence, not only because of the introduction of the agreement on evidence, but also because of the changes in the principles of taking evidence from the testimony of a witness.

There are currently practically no proceedings in commercial cases without the involvement of witnesses. They are extensively and willingly nominated by the parties. Taking evidence from the testimony of witnesses (especially if both parties agree to nominate one) can significantly extend the proceedings.

It happens that, in order to extend the proceedings, a party can nominate 20 witnesses to present the same circumstances. The agreement on the taking of evidence can provide that each of the parties will entitled to nominate just three. However, with respect to the evidence from the testimony of witnesses, the Ministry has ensured that the ability to take advantage of such evidence has been significantly restricted.

The Bill provides that the court may allow evidence to be taken from the testimony of witnesses only if facts of significance to the case have not been clarified after the other evidence has been exhausted or in the case of a lack of other evidence. This means that evidence from the examination of a witness will be admissible exceptionally in commercial proceedings.

Only evidence from documents

There is currently no hierarchy of evidence. If the Bill becomes effective in an unchanged form, this will not change. In the case of commercial proceedings, the Bill assigns superiority to evidence from documents.

An activity of a party, especially a declaration of intent or knowledge, which the law relates to the acquisition, loss or change in the rights of a party with respect to a given legal relationship (e.g. a declaration regarding the waiver of a claim), may only be demonstrated with a document, as referred to in Article 77³ of the Polish Civil Code (namely a document as a medium of information enabling its content to be read). The exception will be the situation in which the party demonstrates that it cannot present a document for reasons for which it is not responsible.

According to the authors of the Bill, the lack of documentation of the facts from which the parties are arguing their demands and allegations and the demonstration of these circumstances with the help of testimony of witnesses or the parties leads to the proceedings becoming lengthy and expensive. It also paves the way to procedural manipulation, primarily obstruction involving deliberately referring to evidence that is difficult to take, which cannot be excluded in advance as being deprived of substantive value. As I have already mentioned earlier, the situation is frequently encountered where the party nominates 20 witnesses to present the same circumstances.

The award of superiority to evidence from documents is justified by technical progress, which has enabled the documentation of facts practically without cost by all types of records in digital form. Solutions have also been introduced into the civil procedure enabling the unlimited use of such documentation. It is indisputable that the majority of business arrangements, negotiations of agreements, confirmations of orders and instructions take place electronically (most frequently by e-mail).

Consequently, it should be accepted that the professionalism of the entrepreneur should also include the documentation of facts for possible use in the case of a dispute.

Similarly, every entrepreneur who wants to properly take care of his interests should document his business relations in detail. This means concluding agreements in writing, even if the regulations do not provide for such a form for the given agreement, corresponding by e-mail and confirming in it the key arrangements of the parties. The failure to keep appropriate documentation can be considered the entrepreneur’s failure to apply due diligence in caring for his own interests. In the case of a dispute, a part of the proceedings will be subject from the beginning to a significant risk of a loss because of missing documents and the lack of preparation of the party. In such a situation, as is frequently currently the case, a number of witnesses will not help, as it will be difficult to nominate them.

The precise documentation of the whole of the business relationship with the trading partner may prove to be of key importance to asserting claims in court.