(R)evolution of civil procedure

If the solutions now proposed by way of amendments to the Polish Civil Process Code are left to judicial practice, improved efficiency of civil proceedings may prove elusive.

The amendments to the Polish Civil Process Code announced in the Journal of Laws on 6 August 2019 have elicited a small uproar among litigation lawyers and judges. The revolutionary character of the amendments is testified to not only by the sheer number of amended or added provisions (which runs past 300) but, first and foremost, by the substantive nature of the changes, which affect even such basics as witness testimony.

Depositions – The stuff of arbitration

The first of the changes consists in increased provision for written testimony. This is an attempt to address the problem where failure of a witness to appear, and the attendant necessity of summoning her to another hearing, engenders delays in conclusion of a case. To date, Polish procedure allowed for written witness testimony in a narrow scope only – in the European small claims procedure and in non-litigation proceedings. Presently, the new art. 271¹ of the Civil Process Code provides that a witness shall give her testimony in writing if the court so decides. At this point, it seems as if this laconic statutory provision would benefit from further elaboration. All that we know for sure is that, if written testimony is enjoined, the witness must submit it to the court within the specified deadline (along with her signed oath), and that a witness who fails to do so may be punished as if

she would for unjustified failure to appear (art. 274 § 1 of the Civil Process Code) and for unjustified refusal to testify and/or to swear an oath (art. 276 of the Civil Process Code).

The new provisions of the Civil Process Code do not specify what sorts of circumstances should be taken into account when allowing a witness to testify in writing, or what the justification for such a decision might be. There arises the question whether written testimony should be considered the new norm to which we should all aspire (as much would be logical, if economy of process and simplification are taken into consideration), or whether it should be more of an exceptional solution resorted to if special circumstances arise (e.g. impossibility of personal appearance, manifestly simple character of the case) (…)

The full text of this article (in Polish) is available in Rzeczpospolita (17.09.2019).