Dr Ewelina Stobiecka

Attorney at law

I’ve been supporting entrepreneurs for almost twenty years in resolving commercial disputes in and out of court. I represent my clients as an attorney and negotiator and also act as a commercial mediator...
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Taking evidence in a new civil procedure.

Ewelina StobieckaComments (0)

Taking evidence in a new civil procedureTaking evidence is the most time-consuming and crucial stage of the proceeding in proving the parties’ points.

Also the legislator has foreseen a few novelties which are aimed at accelerating the proceeding and making it more effective. There are also many changes of a purely ordering or specifying nature. All amendments will enter into force on 7 November, so it is important to take a closer look at them, also in the context of considering the choice of alternative dispute resolution methods.

First of all, a good plan

The first important decision concerning taking evidence in the new civil procedure will be taken at the preparatory meeting, which I wrote about in the first part of this series of publications. It relates, in fact, to a plan for taking evidence submitted by the parties, described in detail in the so-called timetable of the trial prepared by the parties together with the judge during the preparatory meeting (added Article 205 (5) of the Code of Civil Procedure).

The very preparation of the trial timetable and planning the sequence of taking evidence activates the parties and makes them jointly responsible for the course of the proceeding.

Motions for evidence

The new provisions also explicitly describe that each party is obliged to make a statement as to the facts (no longer “factual circumstances”, which is a change of ordering terminology nature rather than of a substantive nature). A party is obliged to specify the facts which it denies (and some of them it admits), which is a novelty and is intended to prevent denial of all the other party’s statements in bulk. This wording of art. 210 of the Civil Procedure Code is intended to encourage the parties to clearly list the facts to which they deny, which will significantly restrict the process of proving evidence.

Similarly, the provision of art. 228 of the Civil Procedure Code relating to commonly known facts which do not require proof, has been clarified. Nevertheless, the previous provisions did not give the parties the certainty that such facts are taken into account by the court. In the current wording of the provision of art. 228 of the Civil Procedure Code, “the court takes them (facts commonly known) into account even without reference to them by the parties”.

Moreover, in order to improve the process of proving evidence, the provisions concerning the evidence motions formulated by the parties have also been clarified. So far, parties have been formulating their motions for taking evidence “on circumstances” instead of ” confirming concrete facts”. In practice, such motions were formulated very broadly and were often based “on the legitimacy of the claim”, which made it very difficult to assess the use of such evidence. In this respect, a new art. 235¹ of the Civil Procedure Code was added which introduces an unambiguous requirement that a motion for evidence must indicate the facts which a party wishes to prove with given evidence.

According to the wording of this provision, “In a motion for taking evidence a party is obliged to mark evidence in a manner which enables it to be taken and to determine and specify the facts which are to be proved by such evidence”.

The phrase “determine and specify” stresses that this indication is to be individualised as to each fact and as to each piece of evidence, so the party is obliged, on the one hand, to exhaustively list all the facts which are to be proved by the requested evidence and, on the other hand, to indicate which piece of evidence provides the relevant proof.

Refusal of taking evidence

It appears that there is no need to differentiate between the decision concerning the refusal to take certain evidence on the rejection of a motion for evidence, its reimbursement, rejection, etc. Therefore, the legislator has opted for a collective, uniform formula of “omission of evidence”, which includes all these decisions.

The catalogue of conditions under which the court may refuse to take the evidence (which takes place by way of a decision) is provided for in the new art. 235² of the Civil Procedure Code, which states:

 “In particular, the court may disregard the evidence:

1) the performance of which is excluded by the provision of the Civil Procedure Code;

2) which is to prove an indisputable fact which is irrelevant for the decision on the case or which has been proved in accordance with the applicant’s statement;

3) which is not useful to prove a given fact;

4) impossible to take;

5) only aimed at extending the proceedings;

6) if the party’s application does not comply with the requirements of art. 235 (1), and the party has not remedied this despite being requested to do so.

2. Disregarding the evidence, the court makes a decision stating the legal basis on which it is based’.

The change of the requirements concerning the content of the motion for evidence similarly entailed a change in the mandatory content of the decision on admitting the evidence. The current wording of art. 236 was too imprecise.

“Art. 236. § 1. In the decision on the admissibility of evidence, the court will indicate the evidence and facts to be proved by it and, if necessary and possible, also the date and place of taking evidence.

2. If a party requested that the resolution should be given as to the evidence, it is sufficient to refer to the decision to the content of the application.

3. Commisioning a designated judge or a requested court to take evidence, the court will appoint the judge or the court. If no time limit or place for taking evidence has been specified, it will be specified by the designated judge or the requested court.

Activation of parties when taking evidence

The new Article 242¹ of the Civil Procedure Code introduces changes which are significant from a practical point of view, which provides for activating a party when taking evidence. Experience shows that it is difficult to take evidence from witnesses’ testimonies: it transpires that witnesses reported by a party, even those closely related to it, do not appear (for various reasons) in court. The new regulation imposes, as far as it is possible, the obligation on the party to make efforts to ensure that the person summoned to the court, upon the party’s motion, appears in the indicated place and time.

This provision makes the party co-responsible for the efficient conduct of evidence proceedings, and thus for the whole process.

“Article 242 (1) A party which has requested to summon a witness, an expert witness or other person to the court’s activities, should endeavor to have that person appear at the specified time and place, in particular to inform them of their duty, time and place of appearance”.

Documentary proof

In the current legal situation and in accordance with the letter of the law, the judge issued a decision on admitting evidence from a document attached to the case file. This was unnecessary for the judge, while the specificity of the documentary proof, i.e. the provision of information contained therein, only requires (for its performance) reading that document. Therefore, issuing a decision in this matter seems unnecessarily formal. Besides, issuing a decision on attaching a document to evidence would obviously be illogical: it would be necessary to read the document in order to convince oneself that it should not be read. In such cases, such evidence will be accepted (automatically) and taken (by reading it once).

Another situation occurs when we are dealing with the exclusion of an evidentiary document from the material evidence. Then issuing an appropriate decision should be necessary.

“Article 243 (2) Documents contained in the case file or attached to it constitute evidence without issuing a separate decision. Excluding evidence from such a document, the court will issue a decision”.

Witness statements

The appearance of a witness at the request of a court may be prevented by not only illness or lameness, but also by other insurmountable obstacles, such as imprisonment. Therefore, following the criminal procedure, the legislator has extended the grounds for examining the witness in the place where he/she is staying. At the same time, terminology has also been modernised, replacing the outdated term “lameness” with the term “disability”.

“Article 263: A witness who is unable to appear upon request because of illness, disability or other insurmountable obstacles shall be heard in his place of residence”.

An important novelty in taking evidence is the introduction of the facility to give evidence in writing. This facility, hitherto only foreseen in the European Small Claims Procedure, has just been extended to the whole civil procedure.

The new provision of art. 271¹ of the Civil Procedure Code states that “a witness gives evidence in writing if the court decides so. In such a case, the witness makes an oath by signing the text of the oath. The witness is obliged to give the text of his/her testimony to the court within the time limit specified by the court (…)”.

This solution may give rise to controversy and concerns regarding the possibility for the interested parties to influence the content of the statements written down by the witness. A significant limitation of this type of written statements is that one cannot verify all the elements of the witness’ examination, which are important to acquire the truth, such as, the possibility to  ask  precise questions, observing the witness’s behavior and his/her body language, etc.

To what extent and how this new institution of witness’ testimonies in writing will function in practice, we will probably see very soon.

In addition, following an institution which has been operating for a long time in criminal proceedings, the civil court has also been granted an additional tool allowing it to determine whether a witness is suffering from any disability. This tool is to ensure that a medical expert (psychologist or neurologist) or a psychologist may participate in the proceedings when hearing a given person.

The new art. 272¹ of the Civil Procedure Code provides for the appropriate regulation, which stipulates that:

“If a court doubts the ability of a witness to perceive or communicate observations, it may order that the witness be heard in participation with a medical expert or psychologist, and the witness may not object to this”.

Participation of experts

The hitherto judicial practice is based on a complete separation of a witness and an expert as two sources of evidence: no statement is taken from the expert and no opinion is given by the witness.

However, judicial practice has shown that in certain situations it is purposeful to repeal this incompatibility. Often, before the trial, the parties commission specialists in a given field to draw up expert analysis, initially to show them the subject matter of the dispute. It is clear that the value of such statements cannot be over-estimated because they are often made by the best specialists in a given field. However, such person may be heard in court at most as a witness, but he or she must not draw conclusions from the described facts with the use of his or her own expertise.

To this end, the court “must ” appoint an expert, which of course prolongs the proceedings and duplicates the costs of such analysis. As practice shows, an opinion commissioned by the court is usually drawn up by a weaker expert than a “witness” interviewed by the court, who has been commissioned to prepare a private opinion.

The solution to this disadvantage is to repeal the prohibition of combining the roles of a  witness and an expert. However, the legislator has not decided to make wider use of such a facility and, as the justification for the amendments reads , “(…) until such time as the criteria for admissibility and evaluation of such evidence are developed in the case-law, its use should be limited to simplified proceedings, and thus to cases with a lower value of the subject-matter of the dispute, in which the consequences of possible errors when applying to a new institution will not be too severe (…)”.

Thus, the relevant provision was only introduced for the simplified procedure in art. 505 (7) § 3.

“Article 505 (7). § 1. Whenever the legitimacy of or the amount compensation should be determined using special information, it is up to the court to decide whether to make an independent assessment based on the overall circumstances of the case or to consult an expert.

2. The expert’s opinion should not be sought if its foreseeable cost would exceed the value of the matter at issue, unless exceptional circumstances justify it.

3. Giving evidence by a witness should not prevent him/her from being consulted as an expert, including the facts about which he/she has testified (witness- expert), even if he/she has previously drawn up an opinion commissioned by an entity other than a court.

In legal transactions, experts’ opinions are widely used which are prepared at the entire private request or at the request of an entity conducting proceedings provided for a separate law (e.g. insurance winding-up proceedings, the complaint proceedings) or at the request of an out-of-court body conducting proceedings other than a judicial one (criminal preparatory proceedings, all types of administrative proceedings), or at the request of a court in another case, whether civil or criminal.

Nevertheless, the existing provisions which regulate the evidence from an expert’s opinion do not explicitly state whether it is permissible in civil court proceedings to take evidence from an expert’s opinion which has not been prepared at the request of the court which is conducting the case (out-of-court). If so, what is the nature of such evidence? However, practical benefits, including the efficiency and speed of proceedings resulting from the use of such evidence in civil proceedings, are clear.

Therefore, in accordance with the new art. 278 ¹ of the Civil Procedure Code, “The court may admit evidence from an opinion commissioned by a public authority in other proceedings provided for in the act”.

As regards participation of an expert in the case, the legislator has introduced a number of other improvements aimed at meeting the needs of practice and the demands of an efficient process.

The changes concern, among others, clarifying the procedure for excluding an expert from a case, issues related to taking the statement from an expert concerning the reliability of his/her opinion, providing the expert with materials for his/her opinion, the procedure for supplementing and explaining the opinion and allowing for an additional opinion, as well as issues related to determining the expert’s remuneration.

It seems that the new provisions on evidence proceedings have met the needs not only of judicial practice but also the need to “dust off” and modernise the regulation which has been operating for over 50 years.

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Dr Ewelina Stobiecka

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