Securing claims and evidence
How can a party strengthen its position in the proceedings?
Time often plays a key role in court cases. Preparation of the statement of claim is often time-consuming, and the use of available legal means, such as interim injunctions, allows valuable time to be gained in addition to securing the claim. Wherever justified by the circumstances of the case, we advise clients to use means that allow them to strengthen their position in the proceedings.
Under Polish law there are two main forms of preliminary or interim relief. These concern the securing of claims and the securing of evidence.
Who can seek an interim injunction and when?
The plaintiff may always file with the court an application for an interim injunction to secure its claim against the assets of the defendant. An interim injunction, issued by the court in the form of an order, will prohibit the defendant from making transactions in its assets that could prejudice the plaintiff and satisfaction of its claims.
Interim relief may be demanded in any civil case before a common court or arbitration court. The court may grant relief prior to or during the course of the main proceedings. Generally, relief may be sought only before a writ of enforcement (such as a judgment with an enforcement clause) has been issued. After a writ of enforcement has been obtained, interim relief may be granted only to secure a claim when the deadline for performance has not passed yet.
A party or other participant in legal proceedings who substantiates a claim may demand interim relief only if it has a legal interest in securing its claim.
“Substantiation” is a legal term specific to Polish procedure. It means that the party makes a prima facie showing, without necessarily complying with ordinary rules of evidence. A claim thus does not have to be proved at this stage, but only substantiated. Means of substantiation are much less formalised; for example, the court may accept a declaration by a party. There is also no need to present all documents evidencing the existence of the claim. Moreover, the court never hears witnesses when only substantiation is required. In practice, a motion for interim relief is usually filed together with the statement of claim, and therefore all evidence sufficient to prove the claim, and not only substantiate it, is already before the court.
A legal interest in obtaining interim relief exists if the absence of the relief would prevent or seriously hinder enforcement of a later judgment or would otherwise prevent or seriously hinder attainment of the objective of the proceedings—for example, if there is a risk that the defendant will conceal or dispose of its assets, preventing or hindering satisfaction of a judgment in the plaintiff’s favour.
When interim relief is granted prior to the initiation of proceedings in the case, the court sets a date by which the initial pleading must be filed, or the security will lapse. The period set by the court may not exceed two weeks, which is also the typical period set by the court.
An application for interim relief should be addressed to the court with jurisdiction to consider the case in the first instance. An application filed during a pending proceeding is reviewed by the court before which the proceeding is being conducted. The only exception concerns proceedings before the Supreme Court, where the court of first instance decides on interim relief.
What should an application for an injunction contain?
The application must indicate the type of security and (in cases involving monetary claims) its value. If a mortgage is to be established over real property, the property must be identified and the land and mortgage register must be specified. If chattels or rights (e.g. shares in subsidiaries) are to be frozen, they must be precisely described. The application must also substantiate the circumstances justifying the motion.
If the application for security is filed prior to initiation of the main proceeding, the subject of the case should also be presented briefly.
The value of the security may not be greater than the claim pursued, with interest up to the date of issuance of the decision on security, together with the costs of security. This amount may also include the costs of the proceedings.
Within what time does a court examine an application for security?
An application for security is subject to immediate consideration but in any case no later than one week after receipt by the court, and as a rule at a closed hearing. This is only a time limit imposed on the court, and failure to comply with it does not entail any consequences.
If any legal provision requires consideration of the motion at a hearing, the hearing should take place within a month after receipt of the application.
What is the court guided by when examining the application?
When selecting the type of relief, the court takes into account the interests of both parties, so that the plaintiff is assured appropriate legal protection and the defendant is not disproportionately burdened. Generally, the relief cannot be tantamount to satisfaction of the underlying claim.
The court considers the application for interim relief within the bounds of the application (i.e. not granting relief beyond what was applied for) and on the basis of the evidence before the court (which may vary depending on the stage of the proceeding and whether interim relief is sought before or after the statement of claim is filed). The court may also make enforcement of an injunction contingent upon payment of an appropriate deposit by the plaintiff to secure any claims by the defendant arising out of enforcement of the injunction.
Can a security decision be amended or vacated?
When the reason for having granted security ceases to exist or changes, the obligated party may request that the final decision granting the security be amended or vacated.
Security lapses automatically (by operation of the law) when the obligated party deposits the amount specified by the entitled party in the security application in the court’s escrow account.
In other cases it is the court that decides whether the grounds for granting security have actually changed and the security should therefore be modified or vacated. The decision on limiting or vacating security may be taken only after conducting a hearing (at which the creditor may also present its arguments).
Appealing a decision on amendment or vacating of security stays its implementation. This means that until the appeal is resolved, the security will continue to function in its original scope.
How is interim relief enforced?
If it is necessary to enforce an order granting interim relief, regulations governing execution proceedings apply. The court will, however, issue an enforcement clause at its own initiative (without an additional application by the party). But when the effectiveness of the interim relief is conditioned on the plaintiff’s submission of security for potential claims by the defendant arising out of enforcement of the order granting interim relief, an enforcement clause is issued only upon submission of the security.
Who enforces security and bears the cost of security proceedings?
If the order granting security is enforceable by execution (i.e. by the bailiff), then the provisions on enforcement proceedings are used to enforce the order, and the court will append an enforcement clause to the order on its own initiative (without the need for an additional application by the party). The exception is where the enforcement of the decision is dependent on the entitled party posting a bond to secure the obligated party’s claims arising after the order granting security is enforced—then the enforcement clause is appended after the bond is posted.
The court decides on awarding the costs of security proceedings in the judgment closing the case. A decision on the costs of security proceedings after the judgment is issued (for example during proceedings before the second-instance court) is made at the party’s request by the court which granted security.
Costs of security proceedings depend on the value of the security.
At the stage of enforcement, these costs are borne by the requesting party.
Can one secure claims pursued abroad?
Polish courts will secure claims for the purposes of foreign proceedings in accordance with the Brussels I Regulation (44/2001).
Securing evidence
Evidence can be secured prior to the initiation of proceedings (on request) or in the course of proceedings (also at the court’s own initiative) when it is feared that later it will be difficult or impossible to take the evidence, or for other reasons there is a need to determine the state of affairs existing at that moment.
As a rule, an application to secure evidence is filed with the court with jurisdiction to hear the case. However, in urgent cases or where proceedings in the case have not yet been instituted, the application should be filed with the district court with jurisdiction over the district where the evidence is to be taken.
The application must state the reasons justifying the need to secure evidence. As a rule, the court will hold a hearing to take the evidence and summon all stakeholders to attend. However, in urgent cases it is possible to secure evidence without summoning the opposing side.
Can evidence also be secured for foreign proceedings?
It is also possible to secure evidence for foreign proceedings under the EU’s Evidence Regulation (1206/2001). The regulation allows an application to be submitted to obtain evidence designated for use in pending or future proceedings.
With such a request, it is possible to make use of evidence and rules that do not exist in the Polish legal system.
The requested court executes the request in accordance with the law of the member state in which it is located. However, the requesting court may call for the request to be executed in accordance with a special procedure provided for by the law of the member state in which it is located, and the requested court will comply with such requirement.
Pursuant to the Evidence Regulation, there are two grounds for refusing to apply foreign rules of evidence: where the procedure is incompatible with the law of the member state of the requested court, or compliance would present major practical difficulties.
Pursuant to Art. 1137 of the Polish Civil Procedure Code, a Polish court may secure evidence located in Poland if it is necessary for pursuing a claim abroad. The application for evidence to be secured is filed with the district court in whose jurisdiction the evidence is to be heard. The applicant must be notified of the date for hearing the evidence unless the matter is urgent.