The new Civil Procedure Code), enacted almost 3 years ago, placed the conduct of proceedings on stricter foundations. As a visible result of this, the number of lawsuits has dropped dramatically in recent years: more than 20% fewer disputes have been filed with the district courts and around 50% fewer at the regional courts than before. Perhaps this is also the reason why, under a bill recently passed, the harsh rules that had seemed carved in stone are likely to be softened.
The stated goal of the new Civil Procedure Code that came into force in January 2018 was to establish professional procedures. A combination of the severe sanctions that are imposed for certain omissions and the often vague wording of regulations has meant that only truly competent legal counsels are able to effectively take on these cases. The procedures themselves have become shorter too, as lawsuits cannot be dragged out ad infinitum by constantly presenting new facts, evidence and legal arguments.
Not surprisingly, the new rules have reduced the desire to sue: while, on average, 145,000 cases were brought before the district courts and 17,000 before the regional courts in the three years before 2018, those figures have dropped to 115,000 and 7,200 in the last 3 years, meaning a fall of 22% and 57%, respectively. At the same time, companies are increasingly stipulating arbitration instead of the ordinary courts in their contracts. By building on the many professional criticisms and judicial practices that have emerged since, the aim of the new bill is to fine-tune the rules that were adopted 3 years ago.
Suing will become less cumbersome
The new Code stipulated a huge number of formal requirements for petitions. While some were vaguely related to the merits of a case, others prescribed obscure requirements such as indicating the telephone number of the legal advisor, which, incidentally, the court may not use to contact the solicitor, as electronic communication is mandatory. If someone failed to meet all the requirements, more often than not the complaint was rejected – so, for example, one application was rejected because the legal representative had left out the “06” prefix from his phone number!
Although in the future the formal requirements will not be substantially reduced, if there are any formal errors, instead of rejecting the application, the judge will only be able to request that they be rectified. Besides this, the court will be obliged to mark any deficiencies that are spotted at the time of the initial examination – it will not be possible to refer to any new errors afterwards. Another important change is that from now on the court will not be able to examine matters relating to the merit of a case when deciding whether to accept the initial application – so, for example, it may not state as a deficiency of the application that an attached document is not adequate for supporting the complainant’s case.
But the procedures may still drag on...
The amendment also softens the rule that the parties may not, in general, amend the initial statements made in the petition or in the defendant’s response. So far, if a party forgot to include a relevant fact or circumstance in the document initiating the suit, then he was only permitted to submit these, subsequently, in exceptional cases. This obviously represented a sizeable risk for both parties.
Although this restriction remains intact in the evidentiary stage of the suit, from this year it will be less strict in the preparatory, so-called ‘admission’ stage, and the parties will again be free to refer to new or different facts. This will reduce the stress of worrying about whether we’ve remembered to include everything at the time the lawsuit was filed. At the same time, however, it creates an opportunity at the admission stage for the parties to drag out the legal dispute using the prolonging tactics that were used when the old code of civil procedure was in force.
“Are we happy... Vincent?!”
In order to speed things up, the approach of the new Code effectively hindered the parties’ right to bring their cases to court. This effect is clearly reflected in the declining number of lawsuits, which in itself warranted a change in the current procedure. Only the future will decide how much the latest amendment will sacrifice in terms of the speed of lawsuits and to what extent we will end up reverting to the state of affairs pre-2018. In any case, we can see that the first comprehensive amendment of the new Civil Procedure Code at least recognises and partially addresses the problems that have emerged in practice and has at least attempted to respond to professional criticisms. And as the Minister of Justice said when announcing the adoption of the new Code: a country’s competitiveness has a lot to do with the quality of its litigation system.