The announced civil procedure reform is in the final stage of the legislative process. At its last sitting before the summer recess, the Senate passed the bill amending the Code of Civil Procedure, making a dozen or so technical amendments. In July, a further two Sejm sittings are scheduled. If MPs approve the amendments before their holidays, the amendment may enter into force this year. The changes include restrictions on deemed service.
The civil procedure reform will introduce far-reaching changes, including the long-announced reform of service of statements of claim and other documents requiring recipients to defend their rights. The bill abandons the decades-old deemed-service practice for individuals whose addresses are not entered in a register. Until now, following the Supreme Court’s interpretation, two notices of attempted delivery have generally been considered an effective substitute for actual service. We discussed deemed service on our blog some time ago.
What obligations does the amendment introduce?
Everything indicates that the service rules described above will soon cease to apply. The amendment provides for the introduction of Article 1391 , specifying precisely and exhaustively what the court and claimant must do if the defendant does not collect the statement of claim.
Service by a court enforcement officer
If the postal operator cannot serve the statement of claim, the court informs the claimant and sends them the copy intended for the opposing party. It also orders the claimant to arrange service through a court enforcement officer. The application will attract a fixed fee, regardless of the claim’s value. Instructing service at a specified address will cost PLN 60; searching for the defendant’s residential address will cost PLN 40. Once instructed, the officer cannot refuse these activities. Steps towards service must be taken within 14 days. If the defendant is not found at the address, the officer may make enquiries as to whether the recipient lives there. An unjustified refusal to answer, or knowingly giving false information, may attract a fine of up to PLN 2,000.
Elements of deemed service after the reform
The amendment retains deemed service where the enforcement officer establishes that the defendant lives at the address supplied but is avoiding correspondence. The officer then leaves a notice allowing collection from the enforcement office within 14 days. If the claim is not collected, it is deemed served on the final day of that period. The officer informs the claimant and returns the document intended for service.
Locating the defendant
If the enforcement officer establishes that the address supplied is wrong, or cannot confirm or rule this out, the claimant must be informed. The claimant may then ask the officer to search for the defendant’s residential address. In doing so, the officer may request information about the defendant from tax and pension authorities and banks.
Support for enforcement officers
Interestingly, the legislature anticipated that the new duties might overburden enforcement officers and their deputies. It therefore also allows enforcement-office employees with no criminal record and at least six months’ service to carry out service-related activities. The reform also empowers employees serving documents to check the identity of those involved.
Further steps before the court
The claimant’s next steps depend on the enforcement officer’s findings. The first option is to file confirmation of service. The second is to resubmit the document with a new address. The final option is to produce evidence that the defendant stays at the address given in the claim. The last two options may well require assistance from a professional detective agency.
Electronic payment-order proceedings after the amendment
Service of payment orders issued by the Lublin e-court will operate somewhat differently. The restrictions on deemed service will not affect electronic payment-order proceedings. If the defendant fails to collect an order after two delivery notices and it was sent to the address recorded for them in the PESEL database, it will be treated as validly served. If the address does not match the PESEL database, the claimant will have one month to remove the obstacle to service.
Possible consequences of the civil procedure reform
Delay
Restricting deemed service may delay many cases. A debtor’s failure to collect a letter will trigger a series of steps. First, the court will order the claimant to serve the defendant. The claimant will then apply to an enforcement officer, who will act within 14 days. After completing the work, the officer will report to the claimant, who will finally submit the information and any documents to the court. Even assuming efficient work by the court, officer and postal service, this will extend proceedings by approximately two months.
Limitation periods
If the claimant fails to take the required steps within two months of receiving the court’s order, proceedings may be stayed. To avoid discontinuance, the claimant must apply to resume proceedings within three months. Otherwise, the court may discontinue the case of its own motion, and the claim will have no legal effect. In particular, the limitation period will not have been interrupted. Finding a debtor who skilfully conceals their whereabouts may take several months, creating a substantial risk that the claims become time-barred. This is particularly significant because limitation periods were shortened last year (our article on that amendment is on the blog). Creditors and their representatives will therefore have to make every effort to prevent discontinuance where the limitation period is approaching its end.
Civil Procedure Code amendment: limits on deemed service
The amendment will eliminate reliance on defective service. It will therefore no longer be necessary to serve documents commencing proceedings ‘again’. It will also avoid debtors first learning of court proceedings from an enforcement officer.
Restricting deemed service thus follows the trend towards greater debtor protection. We highlighted this trend when discussing January’s changes to enforcement proceedings. However, debtor protection almost always correlates with restrictions on creditors’ rights. Here, the claimant’s right of access to a court will be restricted to some extent.
It is therefore reasonable to expect debtors to exploit the option of not collecting correspondence following the reform. Detective services in legal work will extend beyond divorce cases. In certain circumstances, creditors will need professional assistance to prove where their debtors actually live.
We will discuss the Code of Civil Procedure amendment in further articles.
