Securing evidence from an expert opinion before trial – article 310 of the Polish Code of Civil Procedure

What is securing evidence before the initiation of court proceedings?

Pursuant to article 310 of the Polish Code of Civil Procedure, the court may secure evidence where there is a concern that taking such evidence will become impossible or excessively difficult, or where, for other reasons, there is a need to establish an existing state of affairs.

Securing evidence before trial is therefore intended to preserve evidence before a statement of claim is filed, or, less commonly, already in the course of court proceedings. The purpose of this institution is to record a specific factual state in such a way that the secured evidence may later be used in court proceedings.

Article 310 of the Polish Code of Civil Procedure allows various means of evidence to be secured. In practice, the evidence most commonly secured includes:

1. evidence from witness testimony, in particular where the witness does not permanently reside in Poland or where the witness’s health indicates that later examination may be impossible or significantly more difficult,
2. evidence from an inspection or an opinion of a court expert, especially in cases concerning real estate, construction works, defects in a building, defects in a unit or the technical condition of a property.

In the further part of this article, we focus primarily on securing evidence from an expert opinion and an inspection of real estate by a court expert.

When can evidence from an expert opinion be secured before court proceedings are initiated?

Securing evidence from an expert opinion before the initiation of civil proceedings may be justified where there is a real concern that taking the evidence in the future will be impossible or excessively difficult. What does this mean in practice?

In cases concerning real estate and construction works, this may include situations where the condition of a building, unit or completed works may change before the proceedings are initiated or during the proceedings.

Legal commentary indicates that, in real estate matters, securing evidence from an expert opinion under Article 310 of the Polish Code of Civil Procedure may concern, for example, a building at risk of collapse or another non-durable structure. In such a case, proceedings for securing evidence may constitute an urgent measure.

Another example may be a situation in which an investor carried out construction works in leased premises, but the works were performed defectively and the premises cannot be safely used by customers. In such a case, it may be necessary to carry out further remedial works quickly in order to eliminate the risk to the health or life of persons using the premises. However, if repairing the defects changes the condition of the premises, later determination of the scope of the original irregularities may become significantly more difficult. In such a situation, filing an application to secure evidence from an inspection of real estate or an expert opinion may be justified.

Securing evidence from an expert opinion and assessing the chances of success of a claim

It should be emphasised, however, that securing evidence cannot be used as an instrument for verifying the procedural prospects of a future claimant. The purpose of this institution is to preserve evidence whose later taking could become impossible or excessively difficult, not to allow a party to check whether it has a claim and whether it is, in principle, worth bringing an action. Legal commentary expressly states that “the institution of securing evidence cannot be used so that a future claimant may in this way reassure themselves as to the prospects of a future trial” (A. Marciniak ed., Kodeks postępowania cywilnego. Tom II. Komentarz do art. 205¹–424¹², 1st ed., 2019).

Securing evidence therefore cannot be used as a tool for a preliminary assessment of the chances of winning a case before filing a claim. The purpose of this institution is not to obtain a private “procedural forecast” from a court expert, but to secure evidence whose later taking may become impossible or excessively difficult.

It is easy to imagine a situation in which an investor commissioned construction works and, being unsure whether they were performed correctly, files an application to secure evidence from an expert opinion in the field of construction in order to determine possible defects in the property and the costs of removing them.

In such a situation, the claimant could attempt to “test” whether the defects justify a damages claim and what the potential value of that claim might be. However, if there is no need for urgent securing of evidence and no risk of losing the possibility of taking that evidence later, such an application may be regarded as going beyond the purpose of Article 310 of the Polish Code of Civil Procedure. This position is confirmed in case law.

Practical example from Polish case law:

“This application [for securing evidence] went beyond the framework of the institution provided for in Article 310 of the Code of Civil Procedure. By expecting the determination of factual circumstances which it was her procedural duty to present, the claimant clearly sought to obtain information on the scope of the claims available to her and their value” (judgment of the Court of Appeal in Szczecin of 11 December 2018, case no. I AGa 178/18).

Securing evidence from an expert opinion or securing evidence from an inspection of real estate?

In construction and real estate cases, it is important to distinguish securing evidence from an expert opinion from securing evidence from an inspection of real estate.

In many real estate cases, the appropriate solution may primarily be securing evidence from an inspection of real estate. In such a case, the expert’s task should mainly be to describe and record the existing factual state, rather than to conduct a full technical assessment before the proceedings are initiated.

The purpose of evidence from an expert opinion is to provide the court with specialist knowledge. By contrast, the establishment of the existing factual state is generally carried out through an inspection. An inspection of real estate by a court expert therefore serves to record the current condition of the property, unit, building or completed construction works. A protocol is prepared from the inspection. It should include a description of the object inspected, explanations provided by the parties and, where necessary, also a plan, situational sketch, photographs or audio-video recording.

In practice, proceedings concerning securing evidence from an inspection should be limited to carrying out and documenting the condition of the property in a way that enables a later opinion to be issued in the proper examination proceedings.

Can securing evidence replace an expert opinion in the trial?

Securing evidence should not replace an expert opinion carried out in the course of the proper court proceedings.

Where a party files an application to secure evidence in order to determine defects in real estate and the costs of removing them, it should be remembered that such evidence should not lead to a full assessment of the merits of a future claim. Otherwise, securing evidence could in practice partly replace an expert opinion and allow the party to assess the chances of success of the case before filing the claim.

For example, if, in an opinion prepared under Article 310 of the Polish Code of Civil Procedure, an expert states that construction works were not carried out in accordance with the provisions of the Construction Law or the technical conditions for the execution and acceptance of works, it may be argued that the expert did not limit themselves solely to observing and describing the object of evidence, but made a technical and legal assessment.

In such a situation, the evidence may in fact take the form of an expert opinion rather than merely an inspection of real estate. This may lead to the conclusion that taking such evidence under the evidence-securing procedure would infringe the purpose of Article 310 of the Polish Code of Civil Procedure.

According to the case law of the Polish Supreme Court, evidence from an expert opinion is intended to provide the court with specialist knowledge, whereas the existing factual state is established through an inspection carried out by the court, with the participation of experts where necessary.

Securing evidence from an expert opinion in real estate cases – practical significance

In real estate cases, securing evidence may be particularly important where the condition of the unit, building or completed works may change quickly.

This applies in particular to cases involving:

• defects in real estate,
• defects in a house purchased from a developer,
• defects in common parts of a building,
• defectively performed construction works,
• the need to carry out urgent remedial works,
• the risk of losing the possibility of later documenting the technical condition of the property,
• disputes between an investor and a contractor,
• disputes between a tenant and a landlord concerning the condition of the premises.

In such cases, a properly prepared application to secure evidence may allow the condition of the property to be recorded before changes, repairs or further construction works are carried out.

What should a properly prepared application to secure evidence contain?

An application to secure evidence is filed with the court competent to hear the case, and in urgent cases or where proceedings have not yet been initiated, with the district court in whose jurisdiction the evidence is to be taken. The application should include:

1. identification of the applicant and the opposing party,
2. indication of the facts and evidence,
3. the reasons justifying the need to secure the evidence. The applicant should therefore, above all, demonstrate why taking the evidence in the future may be impossible or excessively difficult and why there is a need to establish the existing state of affairs before the proceedings are initiated.

Pursuant to Article 23 point 4 of the Act on Court Costs in Civil Cases, a fixed fee of PLN 100 is charged for an application to secure evidence.

Securing evidence – summary

In disputes concerning real estate, due to the lengthy nature of court proceedings, securing evidence from an expert opinion or an inspection of real estate may be a mechanism that reduces the risk of losing the ability to take evidence in the future.

It is important, however, that the institution of securing evidence is not used by a future claimant solely to assess the merits of a claim before filing a lawsuit. It is also important that the evidence is taken in such a way that the expert establishes the existing factual state, rather than making a full assessment of the dispute requiring specialist knowledge at the pre-trial stage.

Securing evidence may be useful both for a future claimant and for a future defendant. If there is a risk that the dispute will go to court, it is worth analysing whether securing evidence under Article 310 of the Polish Code of Civil Procedure is admissible, what evidence should be secured and how the application to the court should be properly drafted.