Can seeking to secure evidence interrupt the running of the limitations period?
This question can be answered only after determining which substantive law applies to the case. It can be a crucial issue in cross-border disputes.
In pursuing claims in litigation, the limitations period for clams is hugely important, as is the determination of when the limitations period begins to run, runs out, or is suspended or interrupted.
Under Polish substantive law (Civil Code Art. 123 §1), the running of the limitations period is interrupted by:
- Any action before a court or other body appointed to hear cases or execute on claims of a given type, or before an arbitration court, taken with the immediate purpose of enforcing, establishing, satisfying or securing the claim
- Acknowledgement of the claim by the person against whom the claim is held, or
- Commencement of mediation.
The concept of “securing a claim” as used in Art. 123 §1 of the Polish Civil Code is not the same as the notion of “securing evidence.” Under Polish law, the institution of securing evidence in a civil proceeding is governed by Art. 310–315 of the Civil Procedure Code. It is designed to prevent situations where it may otherwise become difficult or impossible to present evidence during a civil trial seeking to enforce claims.
But under the Polish concept, securing evidence does not have the purpose of enforcing, determining, satisfying or securing the claim itself, but will only help in later enforcement of the claim, whose existence must be proved. Therefore, under Polish law, filing an application to secure evidence does not interrupt the running of the limitations period.
The rule is different under the substantive law of the Federal Republic of Germany. §204(1)(7) of the German Civil Code (Bürgerliches Gesetzbuch) provides that the limitations period is suspended by service (filing with the court) of an application to conduct a separate proceeding to secure evidence.
Under §204(2), the suspension of running of the limitations period ends six months after the decision issued by the court in that proceeding becomes legally final.
In the event of a cross-border dispute between parties from different countries (e.g. a German creditor and a Polish debtor), where the claim being pursued is governed by the substantive law of Germany, it is possible to apply to the German court to conduct a separate proceeding to secure evidence, if the evidence is located in Germany.
In that case, under German law, commencing the proceeding to secure evidence in Germany blocks the running of the limitations period. In consequence, the German creditor could then file suit against the Polish debtor—in Germany or Poland—before the limitations period expired, even though under Polish substantive law that would no longer be possible.
Thus when conducting a cross-border dispute under foreign law, it is important not to reach hasty conclusions as to the procedural consequences of specific judicial activities, assuming they will have the same significance as they do under Polish law.
Harald Marschner, Litigation Practice, Wardyński & Partners
