Securing evidence by a court bailiff. An effective alternative to court actions

Securing evidence by a court in Poland

 The basic form of securing evidence in civil and commercial cases in Poland is securing evidence by the court.

The court may secure evidence in the following situations:

• when there is a fear that taking a specific piece of evidence will become unfeasible or too difficult, or
• when for other reasons there is a need to establish the existing state of affairs.

Evidence may be secured:

1. before the initiation of court proceedings – at the request of one of the parties to the dispute, or
2. in the course of court proceedings – at the request of a party or ex officio by the court.

An application for securing evidence shall be submitted to the court competent to hear the case, and in cases of urgency or when the proceedings have not yet been initiated, in the district court in whose district the evidence is to be carried out.

 Securing evidence should, as a rule, take place with the participation of the opposing party. Securing evidence may be admitted without summoning the opposing party only in cases of urgency or when the opponent cannot be indicated or when his whereabouts is unknown.

If any default occur during the securing of evidence, each party has the right to point out these defaults before the court adjudicating in the case to which the evidence securing concerned.

However, a significant disadvantage of securing evidence by the court is usually a long time to consider applications for securing and formalism related to the organization of court actions, which in many cases require quick and efficient action and flexibility.

Out-of-court actions of the parties to the dispute to secure evidence

Bearing in mind the difficulties related to securing evidence in court, the parties between whom a pre-court dispute or negotiation is taking place, in many cases decide to take independent actions in order to preserve a particular state of affairs, in particular by taking photos, video recordings or obtaining written statements by witnesses of certain events.

Evidence prepared in the above manner will, as a rule, be taken into account and considered by the court during the trial, under the procedural law in Poland, including the principle of free assessment of evidence, however, their procedural value is limited.

They constitute only “private evidence” of one of the parties to the dispute and their content and the method of recording may be challenged by the opposing party in court. The opposing party will have the right to argue that such evidence is devoid of official character, so it has no binding force as to what was stated in it. It is worth noting that private evidence is prepared only by one of the parties to the dispute, without the participation of the other party and the court, which affects the limited possibility of their verification. Such evidence may also be susceptible to all kinds of manipulation serving one side of the trial.

Taking into account the disadvantages of judicial preservation of evidence and actions taken privately by only one party to the dispute, a noteworthy and rarely used alternative is the preservation of evidence by a bailiff.

Securing evidence by a court bailiff

Under Polish law, the court bailiff may draw up a report of the facts, which is a record of the bailiff’s eye observations made in the course of personal inspection.

 It should be remembered that the report drawn up by the bailiff should be limited to the objective facts observed by him. The subject of the protocol cannot be observations made on the basis of registers and other public sources of information available to the bailiff, as well as hypotheses regarding specific phenomena, relationships and cause-and-effect relationships.

During the personal inspection, the bailiff may not use coercive measures or break the resistance of people participating in the activities. This means that in certain cases, securing evidence by a court bailiff will require the consent of third parties, e.g. to enter the property, if the owner of the property is not the applicant.

The report of the facts drawn up by the bailiff is an official document, and therefore it is proof of what has been officially certified in it.

This is a fundamental advantage over any evidence in the form of a private document, which only proves that the person who signed a specific private document made a statement contained in this document.

Importantly, the court bailiff may attach a sound or image record, photographs, diagrams, maps, etc. to the minutes of the facts.

Due to the fact that bailiffs’ offices operate in a more flexible manner than courts and are more accessible to the parties to the dispute in ongoing contacts, allowing for direct and quick determination of e.g. e.g. the date and place of the inspection with the participation of the bailiff, is an important alternative to court securing evidence.

However, it should be remembered that the bailiff’s security activities may be limited to visual inspection only, and thus the bailiff cannot secure evidence in the form of, for example, witness statements.

Due to the deteriorating situation in Polish courts, caused, among others, by overload, staff shortages and long waiting times for the case to be considered, a noteworthy solution is the securing of evidence by a court bailiff. The court bailiff has the opportunity to inspect the thing or real estate and draw up a report of the facts, which has the force of an official document. Such evidence can then be used in court proceedings, and the possibility of challenging it is significantly limited.