On Saturday, July 1, another significant amendment to the Polish Code of Civil Procedure came into force. The scope of the changes is rather extensive and affects basically all areas of the Act, starting from the structure of a pleading, the course of preparatory hearing, through newly introduced separate proceedings in consumer cases, and ending with proceedings to secure claims and enforcement proceedings. For this reason, the amendment is of interest not only to lawyers, but also to entrepreneurs and consumers.
According to the explanatory statement to the draft act of 9 March 2023 amending the Code of Civil Procedure Act and some other acts, the legislator intended, first of all, to make the conduct of proceedings more efficient, to reduce courts’ workload and to correct the defects of the Code of Civil Procedure reform of 2019. We will see whether those over 150 amendments made under the Act will help attain the intended goal within the coming weeks and months. However, some of the amended provisions will already have a significant impact on proceedings, including those related to intellectual property cases. And it is the changes in proceedings to secure claims in IP cases that seem to arouse the greatest controversy, although to a large extent they only legitimise the prior practice of courts adjudicating in such cases.
The court’s obligation to take into account the possibility of the invalidation of exclusive rights
When considering claim justification, the court examining a request for securing claims relating to the case, for example regarding a patent infringement, is obliged to take into account the likelihood of a protection right being invalidated in other pending proceedings.
Previously, it happened that ex officio judges checked the status of an exclusive right in a relevant register, in particular paying attention as to whether proceedings to invalidate the right had been initiated or not. Now, the obligation to take such circumstances into account arises from the Act, which is to prevent the securing of claims in many inconclusive situations. Moreover, the parties will now be required to inform the court of whether there are or have already been any proceedings pending regarding the matter, or, alternatively, of their lack of knowledge of such proceedings. For this reason, this change should be deemed a positive one as an attempt to secure the reliability of legal transactions.
Obligation to hear the obliged party
Another element aimed at securing legal transactions is the requirement to secure non-pecuniary claims in IP cases only after the obliged party has been heard (with few exceptions to this rule). As regards this amendment, the legislator explained that their intention was to make the misuse of the institution of the securing of claims in disputes between entrepreneurs more difficult. It was noted that in the previous court practice there were situations in which the facts provided in the request for securing claims, having been confronted with the position of the opposing party at the stage of complaint proceedings, presented the case from a thoroughly different perspective. For this reason, some judges adjudicating in IP courts have long allowed the opposing party to address the request for securing claims in writing or even at a hearing. Now such practice will arise form the Act.
However, the assessment of the above amendment is not straightforward. On the one hand, the amendment provides a party with a guarantee that they can defend their rights in proceedings, but on the other hand, it is in opposition to the principle of the rapidity of proceedings to secure claims (a request for securing claims should, as a rule, be considered immediately, but not later than within a week from its receipt by the court), to guarantee the effectiveness of the security provided, especially where any delays could cause irreparable damage to the right holder.
This amendment undoubtedly strengthens the position of the obliged party, but it can be used as an opportunity to foil proceedings to secure claims in the case of infringing parties acting in bad faith. There are also doubts regarding the inclusion of this regulation in the part of the provisions regarding other cases of security granting, which means that it will not apply to the securing of pecuniary claims pursued in intellectual property cases nor to a special institution such as, for example, the securing of evidence.
Filing a request for securing claims after the lapse of 6 months from the moment the party becomes aware of the infringement
The amendment to the Act also introduces a regulation obliging the court to dismiss a request for securing claims if it is filed after 6 months from the date on which the party became aware of the infringement of their exclusive right. This particular premise of urgency is another regulation legitimising prior judicial practice. So far, some courts have considered that the party requesting the securing of claims after such a period has no legal interest in the securing thereof. This is to motivate the right holders to quickly counteract infringements, assuming that if the entity fails to react immediately to the infringement, the case does not justify urgent granting of temporary protection.
For this reason, the amendment should be deemed a positive one, although it is not defect-free. The provision in the wording as specified in the Act does not provide the court with the freedom to adjudicate, especially in the situations where the party has become aware of the infringement, but for many months has found it difficult to identify the infringer. One can also imagine a situation in which the parties tried to amicably resolve the dispute for many months and reached a settlement or some other agreement, which was then not implemented by the infringing party. For these reasons, the court should be able to consider such circumstances when examining a request for securing claims.
Complaints in proceedings to secure claims
One of the important changes introduced by the 2019 amendment to the Code of Civil Procedure was the introduction of the institution of so-called horizontal complaints against decisions of a court of first instance as regards the securing of claims. The change introduced at that time was widely criticized as being a basis for creating judicial practice regionalisms and as raising doubts among the parties as to the objectivity of judges examining a complaint against a decision issued by a judge from the same department. The legislator decided to respond to the criticism, which resulted in a change in the provision and from now on complaints against decisions of a court of first instance will be heard by a court of second instance. From this perspective, the change will make it possible for the decisions to be reviewed by a higher court.
New requirements for pleadings
In order to accelerate proceedings, the legislator has been consistently introducing additional obligations, mainly for professional attorneys (advocates, attorneys-at-law or patent attorneys), regarding the drafting of pleadings in a concise and transparent manner. The new regulation, being in line with the previous changes, indicates that the pleading filed by a professional attorney should contain clearly separated representations, statements and motions, including motions for evidence. For this reason, the previous practice of some attorneys, consisting in the incorporation of motions for evidence in the justification of the pleading, will no longer be accepted, as the motions contained therein will not have any effect.
Separate proceedings in consumer matters
The legislator has decided to introduce new separate proceedings for disputes between entrepreneurs and consumers, so as to ensure that the cases of the latter are examined in a more efficient manner. Entrepreneurs, even if they have ceased their business activity, are required, inter alia, to submit in the first pleading (a summons or response to the suit) all statements and evidence. In addition, before bringing the action, the entrepreneur will have to prove that they made an attempt to voluntarily resolve the dispute, without evading it or acting in bad faith, which could have contributed, for example, to the action being brought unnecessarily. Otherwise, the entrepreneur may be charged even with double costs of the trial, regardless of the outcome of the case.
Openness of the proceedings
The Act introduces a number of changes regarding the conduct of hearings and the possibility for the case to be heard at a closed session. First of all, from the point of view of a professional attorney, it will be important for the first pleading to include a request for the party to be heard at a hearing. Otherwise, after the parties have exchanged pleadings and documents, the court, considering all the circumstances of the case, may examine the case at a closed session, thus skipping a hearing. In addition, when a preparatory session is scheduled at which the dispute is not resolved, the court may examine the case at a closed session, regardless of whether the parties have requested a hearing.
The court may also close the hearing at a closed session if it considers that the scheduling of subsequent sessions is unnecessary. In such a situation, the court will allow the parties to present their arguments only in the form of a pleading.
In addition to the above significant changes, it is also worth mentioning a few minor ones. The legislator decided, among other things, to increase the value of disputes pending before regional courts from PLN 75,000 to PLN 100,000, which is to reduce the workload for these courts, and for the cases of the value of the dispute up to this amount to be examined by district courts. In addition, the Act introduces the institution of an agent for service, i.e. a person authorised only to receive court letters. It also specifies new rules regarding the service of correspondence to entrepreneurs entered in the CEIDG (Central Registration and Information on Business), obliging them to notify the court of any change in the address for service entered in this register.
Summing up the above, it is difficult not to have the impression that the legislator strives to simplify and accelerate proceedings, which unfortunately is done at the expense of its quality and the parties’ access to the court. The amendments will not have a positive impact on the perception of the courts by the parties, who now have a limited capability to present their positions and give statements at a hearing. Thus, both consumers and entrepreneurs will have to rely on the support of professional attorneys in order to avoid negative procedural consequences. For holders of industrial property rights, inventors, programmers or breeders of plant varieties, the changes regarding intellectual property cases are, in turn, significant in that they will force them to systematically monitor possible infringements in the light of the 6-month deadline for taking legal action from the moment the infringement is detected.
Author: Michał Czubak