Dr Ewelina Stobiecka

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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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The procedural law abuse clause – Is it a vaccine for “creative” litigators or a cure to all evil?

Ewelina Stobiecka19 September 2019Comments (0)

The new Civil Procedure Code includes a completely new clause on the abuse of procedural law as a response to issues of judicial practice related to procedural “creativity” of the parties.

During the work on the new regulations, situations were identified in which, in the opinion of project providers, there is no doubt that the party concerned abuses its procedural rights.

Among such situations, it has been highlighted:

  • filing, as a statement of claim, a letter which does not contain a request to hear a court case,
  • filing a statement of claim which is manifestly unfounded,
  • filing a number of applications to exclude a judge,
  • filing a number of complaints in the same or a similar subject matter,
  • filing a number of applications to correct, supplement or interpret the judgment.

Moreover, procedural law may also be abused in situations where such characteristics cannot be clearly attributed to, although in principle they have two features in common:

  • they are taken on the basis and within the limits of procedural law (the rights to bring an action, the rights to lodge a complaint, etc.),
  • do not, however, pursue the objective for which the relevant procedural institutions have been established.

The primary objective of such actions is to prolong the proceedings and to lead to a paralysis of the judiciary. An example of such can be e.g. lodging a chain of complaints – a “trick” often used by efficient litigators, intertwined with e.g. a number of procedural applications, e.g. those for exemption from court costs. Paralysis can also be introduced by a series of applications to exclude a judge or a series of applications to appoint a counsel provided through legal aid.

The current status

Under the current legal framework, a court has the opportunity to prevent abuse of procedural law by a party in fact only in one situation: when it comes to the excessive number of applications for evidence. Here, the judge, as the host of the proceedings, takes the appropriate decisions.

However, there are no tools to prevent the situation where as a result of such actions of one party to the proceedings, the other parties’ right for the case to be heard within a reasonable time, the right to a fair trial or the right of other individuals to act efficiently were actually infringed.

It was therefore clear that the system of the civil procedural law needs to be supplemented by a limitation of the admissibility of parties’ actions based on the misuse of procedural rights.

The general clause

Given the circumstances of our legal system, the abuse of procedural law has been strictly regulated in order to prevent, as far as possible, any possible overuse of this clause. It was considered that the assessment of whether an act of a party constitutes an abuse of procedural right should be based on determining the objective which the party wishes to achieve by taking the act and on assessing whether that objective is justified.

The general clause is included in the added art. 4¹ of the Civil Procedure Code, which reads as follows: “The parties and participants to the proceedings must not make use of the power provided for in the provisions of the proceedings which is inconsistent with the purpose for which it was established (abuse of procedural law)”:

The sanctions which the court may impose on the abusing party are also provided for in the new Article 226 ² § 2 of the Civil Procedure Code and may consist of:

  • imposing a fine,
  • charging an additional part or even all of the costs of the process,

and at the request of the opposing party it may also consist of:

  • ordering to pay the costs of the proceedings increased in proportion to the increase in the opposing party’s workload caused as a result of the abusive practice, to run the case,
  • increasing the interest rate to be paid on the sum awarded in proportion to the delay in dealing with the case caused by the abusive nature, for the time corresponding to that delay.

Since the abuse can often only be established by reference to the circumstances of the case as a whole, sanctions may only be applied in the decision closing the proceedings.

Specific solutions

The regulation of the general clause on the abuse of procedural law has gone a little further by specifying the provisions in an appropriate manner in order to prevent situations which are exhaustive in terms of abuse of procedural law.

Letter which is not a statement of claim

Among the identified procedural issues, the project providers indicated, among others, lodging a letter under the pretext of the statement of claim which was not the case in reality, i.e. which did not contain a request to hear any case by the court.

Under the current legal framework, the court is in each case obliged to treat such a letter as if it were a statement of claim and give it the course of action by (in particular) forcing the claimant to make a claim. Such situations require an exceptional amount of time and effort from the court, and they somehow “block” judges who are thus forced to conduct procedural correspondence with the claimant of such a letter, motivating him/her to properly formulate the request.

Apart from the objectives of the party’s action who submits such an unclear or vague letter, it seems that, taking advantage of the possibilities offered by wide access to legal aid or even using the available tools, it is uneconomical to pass on to the judge the care for clarifying an unclear letter.

The project providers rightly claim that in such a situation the defendant could also expect assistance from the judge in clarifying the response to the statement of claim.

Therefore, the new procedure includes the provision of art. 186¹, according to which:

§ 1. A letter which has been filed as a statement of claim and from which there is no demand for the settlement of a civil law dispute, shall be returned by the chairman to the claimant without any further action, unless exceptional circumstances justify giving it the course of action”.

In order to ensure adequate procedural guarantees and appropriate review by the court, a decision in this case may be appealed against.

The statement of claim, of course, unfounded

What if the statement of claim is filed correctly and is clearly formulated but unfounded?

A statement of claim is obviously unfounded if its content makes it possible to foresee that it will never be taken into account, so that giving it the course of action and the work of the court is futile. This also includes an apparent statement of claim by which a party pursues an objective other than asserting its rights by means of procedural institutions.

The legislator provided for the facility to dismiss such a claim at a closed session without taking any additional action concerning the statement of claim and, crucially, without delivering the statement of claim to the individual who has been indicated as the defendant.

Such a solution is part of the procedural measures allowed in such situations by the Recommendation no. R(84)5 of the Committee of Ministers of the Council of Europe to the Member States concerning the rules on civil procedure which intend to improve judiciary and where it is permissible to provide for a “simplified” procedure for such cases.

The essence of this simplification in this case is, according to the project providers, to waive from carrying out activities required by the procedure to give the statement of claim a normal course of action, i.e:

– it is not called upon to remove the formal defects of the statement of claim,

– it is not called upon to pay a fee,

– it is not called upon to enclose copies,

– additional applications contained in the statement of claim (for security, for exemption from costs, for appointment of a counsel provided through legal aid, etc.) are not considered,

– no copy of the statement of claim is delivered to the defendant.

The only activity of the court is the chairman’s order to send the case to a closed session and to draw up a verdict and justification ex officio.

The corresponding standard which refers to this situation can be found in the new art. 191¹ of the Code of Civil Procedure, according to which:

“§ 1 If it follows from the content and the annexes and from the circumstances of the statement of claim, as well as from the facts referred to in art. 228 that the statement of claim is manifestly unfounded, the following provisions apply.

2 If the actions which the law requires to be taken following filing a statement of claim are manifestly unreasonable, they can be omitted. In particular, the claimant may not be summoned to remove defects in the statement of claim or to pay a fee, as well as not to check the value of the subject matter of the dispute or to transfer the case.

3 The court may dismiss the claim at a closed session without delivering the statement of claim to the person indicated as the defendant or examining the applications filed with the statement of claim.

4 The justification of the judgment is made in writing ex officio. It should only contain an explanation why the claim was found to be manifestly unfounded. The court, ex officio, delivers the decision with justifications only to the claimant with instructions on the manner and deadlines for filing a complaint”.

The chain of complaints

The chain of complaints is one of the most frequently used tools of procedural non-violent resistance aimed at delaying the proceedings. In order to avoid discrepancies in assessments, the project providers indicate that the second (and of course, further) complaint is considered to have been filed for delay only, brought by the same party against the same decision, as well as a complaint brought against the decision made as a result of actions brought about by lodging an earlier complaint  by the same party against which is the most typical situation.

In order to prevent the chain of complaints, a new sanction has been introduced into the catalogue of procedural means, namely that a complaint should be left in the case file without further action by a simple order of the Judge-Rapporteur.

The only action taken by the court in such a case is to notify the party who lodged the complaint regarding leaving it in the case file without further action, which is an absolute minimum requirement by the principle of internal transparency of the trial.

The appropriate regulation is contained in the new art. 394³ of the Civil Procedure Code, according to which

Ҥ 1. A complaint only lodged to delay the proceedings is inadmissible.

2. A complaint only lodged to delay the proceedings shall be deemed as:

1) the second and further complaint lodged by the same party against the same order,

2) a complaint against a decision issued as a result of actions caused by filing an earlier complaint by the same party – unless the circumstances of the case exclude this assessment.

3. The complaint referred to in § 1 should be left in the case file without any further action, in particular it should not be submitted to the competent court for consideration. The party’s further letters which relate to lodging the complaint should also be dealt with in the same manner.

4. The party lodging the complaint should only be notified once about leaving the complaint and further letters without any further action – when lodging the complaint.

5. The provision of art. 380 shall be applied accordingly”.

Applications to exclude a judge

This further abuse of procedural law consists of the fact that a party submits an application which is in fact unfounded and, as a pretext, uses circumstances connected with the decision of the court on evidence or submits further applications relating to the same judge and invoking the same circumstances.

Here, too, the legislator suggested that the application should be left without further action as a sanction, and where an application is submitted orally, the judge instructs the parties on the ineffectiveness of this action and the lack of influence on the further actions of the court.

A new fundamental regulation of this issue is contained in art. 531 of the Civil Procedure Code, which states that

㤠1. Application to exclude a judge is inadmissible:

1) based exclusively on circumstances connected with the court’s decision on evidence;

2) submitted once again to the same judge, invoking the same circumstances.

2. The application referred to in § 1 should be left in the case file without any further action. The same applies to the letters relating to its filing. The party submitting the motion should only be notified once on leaving the motion and other letters without any further action when submitting the first letter.

3. In the situation when the motion, referred to in § 1, is submitted orally, the chairman notifies the party of its ineffectiveness.

Of course, other provisions concerning the exclusion of adjudicating panels were also subject to supplementation in this respect”.

Applications to correct, supplement and interpret a judgement

As judicial practice shows, the applications to correct, supplement and interpret a judgement, provided for in art. 350-352 of the Civil Procedure Code, are also used as a tool to play for time.

Certainly, the first such motion submitted by a party should be treated as made in good faith, but each subsequent should be assessed firstly in light of the procedural law abuse clause, i.e. whether, in fact, when submitting it, the party does not only aim to delay the proceedings.

The appropriate regulation is contained in art. 352¹ of the Civil Procedure Code, which states that:

Ҥ 1. A motion to correct a judgment only submitted to delay the proceedings is inadmissible.

2. A second and subsequent motion lodged by the same party as regards the same judgment, shall be deemed to be a motion only submitted to delay the proceedings, unless the circumstances of the case exclude that assessment.

3. The application referred to in § 1 should be left in the case file without any further action. The same applies to letters which relate to the submission. The party who submits the motion should only be notified once about leaving the motion and other letters without any further action when submitting the first letter.

4. The provisions of § 1-3 shall apply mutatis mutandis to applications to supplement and interpret a judgment”.

All these solutions which make the procedural law abuse clause more detailed, are certainly a response to procedural ills and excessive “creativity” of the parties or their proxies”.

However, will these solutions be an effective remedy for protracted processes, including an obstructive activity of the parties? Undoubtedly, such a tool as the procedural law abuse clause will contribute to discipline the parties, giving the judges appropriate weapons to fight against destructive actions against the trial.

How this clause will work in practice,  probably only the practice of its application and the first statistics will show. One thing is certain: users of the justice system acting in bad faith will have a much harder time.

If you want us to help you solve a dispute in business, please contact us under:

tel.: +48 669 73 79 79e-mail: e.stobiecka@taylorwessing.com

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