Service in civil proceedings – draft of upcoming changes
Service of the first letter in the case on the entrepreneur
In the current state of the law, if it is impossible to serve a pleading in the manner provided for in Article 135 of the CPC – Article 138 of the CPC, a letter sent through a postal operator should be deposited at the post office of that operator, and one served in another manner should be deposited at the office of the competent municipality, placing a notice of this at the door of the addressee’s apartment or in the delivery mailbox, indicating where and when the letter was left, and instructing that it should be collected within seven days from the date on which the notice was placed. In the event of the ineffective expiration of this period, the action of notification shall be repeated (Article 139 § 1 of the CPC).
According to the proposed amendments, if a party who is an entrepreneur registered in CEIDG cannot be served with the first letter in the case in the manner provided for in Article 135 of the CPC – Article 138 of the CPC or Article 139 § 1 of the CPC, due to failure to disclose in CEIDG a change of address for service, the letter shall be served at the party’s residential address. If a party needs to be served with a letter by a bailiff (Article 139(1) of the CPC), the costs of service shall be borne by that party regardless of the outcome of the case.
It should be emphasized that this change is to apply only to the service of the first letter in the case. With regard to further letters, if the address for service in CEIDG is current, and the entrepreneur does not receive the mail, the effect of the so-called service by advice letter will follow.
This change is also related to another planned novelty, i.e. the introduction of an obligation for entrepreneurs registered in CEIDG to inform the court of any change of address for service. Failure to do so will result in the court’s letter being left on file with the effect of service.
Thus, switching to the route of service to the residential address of the first letter in the case of an entrepreneur entered in CEIDG will be possible only when the address in CEIDG turns out to be patently outdated (e.g., from the post office annotation it will appear that the building does not exist or the addressee has moved out, or the addressee is not known at the address or no longer conducts business there). When it turns out that the address is not outdated, there is nothing to prevent delivery by double advice letter to the address from CEIDG, both the first letter in the case and further letters.
Service through a bailiff
The proposed amendments provide for clarification that the mode of service through a bailiff provided for in Article 139(1) of the CPC applies only to individuals who are served with correspondence at their residential address.
The bill also clarifies that the above regulation also applies to court rulings that are the first in a case or are subject to service with a lawsuit (e.g., a payment order). This is because in the current wording, the provision of Article 139(1) § 1 of the CPC refers exclusively to a statement of claim or other pleading.
The proponent of the bill also provided for the addition of a provision allowing the court to waive the above method of service in the event that – despite the failure to collect the advice letter, the defendant’s address indicated in the statement of claim is not in doubt. The justification for the bill indicates that this applies in particular to situations where the defendant’s address is known to the court from other ongoing proceedings, as well as those in which the plaintiff attaches relevant evidence of the defendant’s residence at the indicated address to the suit, anticipating the defendant’s attempt to evade receipt of court correspondence.
The plaintiff will thus be able to exempt himself or herself from the obligation of bailiff service.
The bill also proposes to add the provision of Article 139(2) of the CPC, according to which, in the case referred to in Article 139(1) § 1 of the CPC, if the plaintiff resides or is located abroad and is not represented by a professional attorney practicing in the Republic of Poland, the court will ex officio order the delivery of correspondence to the defendant through a bailiff.
Summary
As indicated on the government website, the project concerns, according to the justification, speeding up court proceedings and making it easier for parties and attorneys to contact the court, clarifying the rules of bailiff service.
So far, the issue of substitutive service and bailiff service has raised numerous doubts. However, the proposed discretion of the court in determining whether or not the defendant’s residential address indicated in the statement of claim is questionable may ultimately fail to dispel existing doubts or contribute to the emergence of new ones.
Currently, the bill is after three readings in the Parliament and has been forwarded to the President and the Senate Speaker.
At this stage it is difficult to predict in what final form the legislation will come into force. However, it can be noted that this is yet another plan to make it easier for creditors to pursue their claims, which is to be appreciated.
