Litigation in Poland
Poland has three levels of common courts (district courts, regional courts, courts of appeals) and the Supreme Court.
Each civil case may be decided by the courts of first instance and by the courts of second instance. There is a right to appeal against all judgements of the courts of first instance. With some exceptions, cases with the value of dispute up to PLN 100,000 (ca. EUR 22,000) are decided in the first instance by district courts, and in the second instance by regional courts. Most business cases are decided in the first instance by regional courts and in the second instance by courts of appeals.
In most cases, it is also possible to file a cassation appeal with the Supreme Court against a judgment made in the second instance. The value in dispute has to be at least PLN 50,000 (ca. EUR 11,000) in order for a case to qualify for a cassation appeal. The exceptions are labour law cases, in which the value in dispute has to be at least PLN 10,000 (ca. EUR 2,200). However, the Supreme Court has wide discretion in deciding whether to review the case.
Commercial disputes are civil disputes between companies, partnerships and sole traders, as well as corporate disputes, bankruptcy cases and restructuring cases.
Commercial disputes are subject to special, more restrictive rules of procedure. Stringent rules of evidence apply. In particular, witness evidence is limited and there are strict cut-off dates for admitting new evidence. What is more, it is not possible to file a counterclaim in commercial disputes.
There are no separate commercial courts in Poland. Commercial disputes are decided by the common courts. There are, however, commercial divisions within common courts. Commercial disputes are submitted to common courts and then assigned to commercial divisions.
A claimant is obliged to pay an initial filing fee, i.e. a fee for filing a lawsuit. As a rule, the initial filing fee depends on the value in dispute. If the value in dispute is higher that PLN 20,000 (ca. EUR 4,500), there will be a 5% filing fee, with a maximum fee of PLN 200,000 (ca. EUR 45,000). In smaller cases, there are flat fees assigned to the value in dispute brackets.
In certain types of cases, the filing fee is flat regardless of the value in dispute (for instance in most corporate disputes).
If you want to file an appeal or cassation appeal against an unfavourable judgment, the fee is the same as for filing a lawsuit in the given case.
In commercial disputes, a claimant is obliged to present all their claims and evidence in a statement of claim, and a defendant does the same in the statement of defence. Claims and evidence presented at a later stage will be disregarded by the court, unless a party proves that they were unable to present new claims or evidence earlier, or that the need to present new claims or evidence arose later. In such a case, further claims and supporting evidence should be presented within two weeks.
Interim injunctions may be sought in every civil case. The court may grant an interim injunction before a lawsuit or during the proceedings. In an application for interim relief, the party has to substantiate its claim, with the “more likely than not” standard applying. The party also has to show a legal interest in having an injunction granted.
Polish courts are generally prone to granting interim injunctions. Interim relief is sought in ex parte proceedings. Parties seeking injunctions tend to distort the facts, since there are no significant sanctions for withholding relevant information. It often leads to groundless injunctions that are later overturned on appeal. Injunctions are an excellent way for claimants to shape relations with the defendant and the outset of the proceedings, so often lead to settlements that would otherwise be unlikely. The other side of the same coin is that injunctions are a major risk for defendants in Poland.
It is not possible to file a counterclaim in a commercial dispute. In other civil cases, a counterclaim can be filed no later than together with the statement of defence. A counterclaim must be related to the main claim or needs to be possible to set-off against the main claim.
Disclosure in Poland is very limited. Each party can ask the court to order the other party or a third party to produce a specific document. The request has to be narrow in scope. Generally, Polish courts are reluctant to use this procedure.
As a result of the COVID-19 pandemic, it became possible to conduct remote hearings. It is at the court’s discretion whether to hold a hearing in person or virtually.
The order in which witnesses testify is determined by the court, not the parties. Witnesses who have not yet testified are not allowed to be present while other witnesses are heard.
Witness examination starts with a judge’s general questions to discover what the witness knows about the case and what is the source of that knowledge. Some judges continue the examination by asking more detailed questions, some give the floor to the counsel right away. Questioning a witness by the parties’ counsel usually starts with a direct examination, followed by a cross-examination, then redirect examination and re-cross (although the concept of cross-examination as opposed to direct examination is not recognised in the Polish civil procedure).
There are no provisions in Polish law regarding the types of questions that can be asked. There is only a general rule that a judge can strike a question that is incorrect or redundant. The practical use of this right varies. For example, some judges will strike all leading questions, even on cross-examination, and some will allow them.
Witnesses give evidence in writing if the court decides. In such a case, the court first orders the parties to submit their questions in writing, which are then forwarded to the witnesses.
Written witness statements are submitted to the court not by the parties, but directly by the witnesses themselves, within the time limit set by the court. As a rule, these statements replace oral testimony. The court may decide that a witness should additionally testify at a hearing, especially if their written statement is incomplete or unclear, but that does not happen very often.
If a hearing is held virtually, all witnesses testify remotely.
If the hearing is held in person, in compliance with EU regulations and international agreements, the Polish court may request that a witness or a party be heard by a foreign court with jurisdiction over the place of residence of the person being questioned who is a foreigner living outside Poland.
Generally, a court may decide to issue a judgement in a closed session without conducting any hearing, unless a party, in its first pleading, demands a hearing.
In Poland, expert evidence is provided by experts appointed by the court, rather than the parties. Court-appointed experts prepare reports. The parties can comment, request additional reports or request to question experts at a hearing.
A report commissioned by a party and prepared by an expert in the relevant field may be submitted as evidence, but it does not have the value of expert evidence. Such reports are often submitted in order to present a party’s position on technical issues in a persuasive manner and substantiate critique of court-appointed expert reports.
Polish courts generally apply the ‘loser pays’ rule. Court fees (filing fees, court experts’ fees etc.) are generally reimbursed by a losing party in full, while the reimbursement of legal fees is limited. Actual legal fees incurred by a winning party are not taken into consideration. Instead, courts are obliged to apply regulations on flat legal fees, which are assigned to different types of cases and different values in dispute. As an example, in a case for payment of PLN 1,000,000 (ca. EUR 220,000), the winning party would be reimbursed for legal fees in the amount of PLN 10,800 (ca. EUR 2,400).
In particularly complicated and time-consuming cases, a court can award a multiple of the flat legal fee (up to a factor of six), but this is rarely applied.
A party may appeal against every judgement rendered in the first instance. With few exceptions, judgements rendered in the first instance are not immediately enforceable.
Proceedings in the first instance typically last two to five years. Proceedings in the second instance last from six months to two years depending on where the court is located. The courts in Warsaw are the busiest, so the proceedings there tend to take the longest.
As soon as an appeal is ruled on, a judgement is final and enforceable. However, there are ways to challenge a final judgement and to stop the enforceability of a final judgement.
A cassation appeal to the Supreme Court may be filed, but not every case qualifies for it. The value in dispute has to be at least PLN 50,000 (ca. EUR 11,000) in order for a case to qualify for a cassation appeal. The exception are labour law cases, in which the value in dispute has to be at least PLN 10,000 (ca. EUR 2,200).
Grounds for a cassation appeal can only concern the law, not facts and evidence. The Supreme Court has wide discretion in deciding whether to review the case. The case will be reviewed if there is an important legal issue or a need to interpret legal provisions that raise serious doubts or cause split in lower courts.
Given that a final judgment is enforceable, a party filing a cassation appeal may request a suspension of the enforceability of a final judgement. If, as a result of the execution of the judgment, irreparable damage may be caused to the party, the court of second instance may suspend the enforceability of the final judgement until the end of the cassation proceedings.
With regard to EU Member States, the enforcement and recognition of judgements is regulated by the Brussels I bis Regulation. It provides for the automatic enforceability of judgments issued in another Member State, without prior confirmation in separate proceedings.
As for other countries, judgements made in Poland are recognised and enforced according to multilateral international agreements (e.g. Poland is a party to the Lugano Convention 2007) and bilateral international agreements. In the absence of an agreement, recognition and enforcement are subject to exequatur proceedings according to the law of a given country, usually in compliance with the reciprocity principle.
With regard to EU Member States, the enforcement and recognition of judgements is regulated by the Brussels I bis Regulation. It provides for the automatic enforceability of judgments issued in another Member State, without prior confirmation in separate proceedings.
As for judgements made in other countries, they are recognised and enforced according to multilateral international agreements (e.g. Poland is a party to the Lugano Convention 2007) and bilateral international agreements. In the absence of an agreement, the recognition and enforcement of a foreign judgement is subject to the provisions of the Polish Code of Civil Procedure (exequatur proceedings).