The inadmissibility of discontinuance of proceedings pursuant to Article 182(1)(1) of the Code of Civil Procedure, in the event that the Court takes actions indicating that proceedings have been commenced in the case

The facts and course of the case were rather complex, but they do not require detailed discussion for the purposes of this article. It suffices to note that there was joint litigation on the defendants’ side, applications were made to appoint a guardian for persons whose whereabouts were unknown, steps were taken by the Court Bailiff to serve court correspondence, and, furthermore, there was a change of legal representative on the claimant’s side.

In the course of the proceedings, due to the impossibility of serving court correspondence on one of the defendants, the proceedings were stayed pursuant to Article 177 § 1(6) of the Code of Civil Procedure.

Importantly, during the period of suspension of the proceedings, the grounds for discontinuance of proceedings specified in Article 182 § 1(1) of the Code of Civil Procedure materialised in relation to one of the defendants whilst the bailiff was carrying out activities to serve court correspondence.

The Court Bailiff served the court documents on the defendant, and the court – at the claimant’s request – issued a default judgment, which, upon being certified as enforceable, consequently allowed enforcement proceedings to be initiated.

The defendant challenged the bailiff’s action as having been carried out improperly and also applied for the default judgment to be set aside on the grounds that the court documents had not been served. The court set aside the bailiff’s actions, set aside the default judgment and discontinued the proceedings pursuant to Article 182 § 1(1) of the Code of Civil Procedure, noting that the grounds for discontinuing the proceedings had already materialised at the stage of the bailiff’s actions aimed at serving the court documents. In doing so, the court referred to the Supreme Court’s position expressed in the grounds for its decision of 27 August 2015, file ref. III CSK 171/15 (Lex No. 1801542), according to which the normative content of Article 182 § 1 of the Code of Civil Procedure supports the view that the time limit for discontinuance depends solely on the date of the order suspending the proceedings; therefore, it is irrelevant whether the order suspending the proceedings was final, or even whether it was served on the party at all.

Following the appeal lodged, this order was set aside as erroneous by the Court of Appeal in Warsaw, 6th Commercial and Intellectual Property Division (case no. VII AGz 78/23).

Among the grounds raised in the appeal, the Court of Appeal found the following to be valid: that, given the state of the case – despite the Court of First Instance not having formally resumed proceedings,  the Claimant had filed a valid application to resume the suspended proceedings, which in effect led to their actual resumption, as evidenced by the interaction between the Claimant’s actions and the proceedings of the Court of First Instance. The Court of Second Instance explicitly stated that it is impermissible to discontinue proceedings on the grounds that they remained suspended (Article 182 of the Code of Civil Procedure) in a situation where the Court’s actions justify the conclusion that the proceedings are not suspended, even in the absence of a formal resumption of proceedings.

The Court of Appeal stated that, when issuing a ruling on discontinuance, the court should, firstly, reassess whether there was a statutory ground for suspension and whether the party on whom the obligation to take action was imposed was able to fulfil it, and secondly, whether the conditions for discontinuance of proceedings are met. It was also emphasised that the discontinuance of suspended proceedings is permissible where two conditions are cumulatively met: the absence of a request to resume them and the expiry of the statutory time limit.

As the Court of Appeal pointed out, the Regional Court erred in discontinuing the proceedings at that stage of the proceedings, when proceedings against the Defendant had already been resumed and a default judgment had been issued against the Defendant. In other words, discontinuance of proceedings would have been possible in the case of suspended proceedings, and such proceedings against the Defendant no longer existed. Therefore, the Court of Appeal, pursuant to Article 386 § 4 of the Code of Civil Procedure in conjunction with Article 397 § 3 of the Code of Civil Procedure, set aside the contested order.

As the provision of Article 182 § 1(1) of the Code of Civil Procedure is one of the most controversial concerning civil proceedings, particularly given the difficulties in serving court documents on defendants, one can only hope that there will be more rulings such as the one above, which will help to dispel the perception of civil proceedings as becoming increasingly bureaucratic.