Securing evidence before trial in Poland – expert opinion and inspection

Securing evidence before trial – when may it be used under the law?

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

The purpose of securing evidence before trial is therefore to preserve evidence before a statement of claim is filed or, less commonly, once court proceedings are already pending. The purpose of this institution is to record a particular factual situation in such a way that the secured evidence can later be used in court proceedings.

Article 310 of the Polish Code of Civil Procedure allows different types of evidence to be secured. In practice, the following are most commonly secured:

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

In cases concerning real estate and construction works, this may include situations in which the condition of a building, premises or completed works may change before proceedings are commenced or while they are pending.

When should evidence be secured before a property is repaired?

In real estate cases, securing evidence may be particularly important where the condition of the premises, building or completed works may change quickly. This is because the owner often cannot wait to remedy the defects until lengthy court proceedings have concluded. Repairs may need to be carried out immediately, a hazard removed, use of the premises commenced, or further stages of construction continued. Once these steps have been taken, determining the original cause, nature and extent of the defects may become significantly more difficult or even impossible.

This applies in particular to cases involving:

• defects in real estate, including defects in premises purchased from a developer,
• defects in the common parts of a building,
• defectively performed construction works,
• the need to carry out urgent repair works,
• the risk of losing the possibility of documenting the technical condition of the property at a later stage,
• 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 alterations, repairs or further construction works are carried out.

Where should an application to secure evidence be filed?

An application to secure evidence is filed with the court competent to hear the case. In urgent cases, or where proceedings have not yet been commenced, it is filed with the district court (sąd rejonowy) in whose territorial jurisdiction the evidence is to be taken.

What should an application to secure evidence contain?

An application to secure evidence should contain:

• identification of the applicant and the opposing party,
• an indication of the facts and the evidence,
• the reasons justifying the need to secure the evidence. The applicant should therefore demonstrate, in particular, 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 proceedings are commenced.

In one of the cases handled by our firm, a contractor had improperly constructed the load-bearing walls of a residential building. The calcium-silicate blocks could be separated by hand, while the mortar used was brittle and did not properly bind the elements. The technical condition of the structure was assessed as critical and presenting a risk of structural failure. The contractor nevertheless disputed the existence of the defects and refused to remedy them.

Continuing the development required the defective walls to be demolished and rebuilt. Once those works had been completed, the original condition of the structure would no longer exist and it would be impossible for an expert to examine it later. Therefore, before filing a statement of claim, we applied to secure evidence by requesting:

“securing, pursuant to Article 310 of the Polish Code of Civil Procedure, evidence in the form of an inspection by a court-appointed expert in construction of the load-bearing walls in the residential and garage parts of the two-unit building located at (…) Street (…) on plot (…), and preparing a record of that inspection in order to establish the existing technical condition of the load-bearing walls”.

What attachments should be submitted with an application to secure evidence?

The applicant should primarily attach documents that make the existence of the defects and the need to take the evidence urgently plausible. These may include, in particular:

• correspondence with the contractor, including requests to remedy defects together with proof of dispatch and receipt, as well as the contractor’s responses,
• photographic documentation showing the identified irregularities,
• recordings showing how the works were carried out,
• a private technical opinion or expert report, if one has been prepared,
• the contract with the contractor, the construction design, technical specifications and documentation concerning the materials used,
• acceptance reports and inspection notes and other documents describing the nature and extent of the identified defects.

How much does it cost to secure evidence?

Pursuant to Article 23(4) of the Polish Act on Court Costs in Civil Cases, an application to secure evidence is subject to a fixed court fee of PLN 100. Of course, where an inspection by a court-appointed expert is required, additional expenses related to the expert’s remuneration and activities may arise, together with an obligation to pay an advance.

What happens after an application to secure evidence is filed?

In practice, once an application to secure evidence has been filed, the court is required to consider it without delay. The application should be considered after the opposing party (i.e. the other party) has been duly notified of the date of the court hearing so that it may present its position. Departure from this procedure is possible only in strictly defined circumstances depending on the nature of the case (an urgent case) or where it is impossible to summon the opposing party. In such a case, there is no need to appoint a guardian for the opposing party.

An urgent case should be understood as a sudden situation requiring immediate action, for example where an inspection of a collapsing building is needed. In such circumstances, waiting for the opposing party’s position could obviously make the application to secure evidence ineffective in practice.

The court then summons the interested parties for the date fixed for taking the evidence. However, in urgent cases, taking the evidence may begin even before the summons has been formally served on the opposing party. Again, the timing of the evidence-taking activity may be crucial.

In addition to the interested parties, witnesses or a court-appointed expert may also be summoned to the hearing.

How can secured evidence be used in subsequent court proceedings?

Evidence secured before trial may be used in subsequent proceedings, but the party should submit an appropriate evidentiary motion. The court hearing the case assesses such evidence under the general rules, including the principle of free assessment of evidence.

If, at a later stage of the proceedings, a party requests evidence from a court-appointed expert opinion, the expert may use the inspection record, photographic documentation, recordings and other materials collected when the evidence was secured by the person who carried out the inspection. This may be particularly important where the condition of the property has changed before the opinion is prepared, for example as a result of remedying construction defects, carrying out further works that removed the defects, or dismantling defective elements. The expert opinion should then take into account the results of the earlier inspection as well as the other evidence collected in the case.

Can evidence be secured merely to find out whether it is worth bringing a claim?

It should be emphasised, however, that securing evidence cannot be used as an instrument for assessing the prospects of success of a future claimant. The purpose of this institution is to preserve evidence whose later taking could become impossible or excessively difficult, not to enable a party to determine whether it has a claim and whether it is worth bringing proceedings. Legal commentary expressly states that “the institution of securing evidence cannot be used so that a future claimant may thereby satisfy itself as to the prospects of success of future proceedings” (A. Marciniak (ed.), Kodeks postępowania cywilnego. Tom II. Komentarz do art. 205¹–424¹², 1st ed., 2019).

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

In such a situation, the claimant could attempt to “test the waters” as to whether the defects justify a damages claim and what its potential amount might be. However, if there is no urgent need to secure the evidence and no risk that it will later become impossible to take, such an application may be considered to go beyond the purpose of Article 310 of the Polish Code of Civil Procedure. This position is supported by the case law.

Practical example from Polish case law:

“The application [to secure evidence] went beyond the scope of the institution provided for in Article 310 of the Code of Civil Procedure. By seeking to establish factual circumstances which it was under a procedural duty to plead, the claimant was clearly attempting to obtain information as to the scope of its claims and their value” (judgment of the Court of Appeal in Szczecin of 11 December 2018, case no. I AGa 178/18).

Securing evidence by an expert opinion or by an inspection of the property?

In construction and real estate cases, it is important to distinguish between securing evidence by means of an expert opinion and securing evidence by means of an inspection of the property.

In many real estate cases, the appropriate solution may primarily be securing evidence by an inspection of the property. In such a case, the expert’s task should primarily be to describe and record the existing factual condition, rather than to carry out a full technical assessment before the proceedings are commenced.

The purpose of evidence from an expert opinion is to provide the court with specialist knowledge. By contrast, establishing the existing factual condition is generally done by means of an inspection. An inspection of the property by a court-appointed expert therefore serves to record the current condition of the property, the premises, the building or the completed construction works. A record is prepared of the inspection and should contain a description of the object inspected, the parties’ explanations and, where necessary, a plan, site sketch, photographs or an audio-visual recording.

In practice, proceedings to secure evidence by means of an inspection should be limited to carrying out and documenting the condition of the property in a manner that enables an expert opinion to be prepared later in the substantive proceedings.

Accordingly, if an opinion prepared under Article 310 of the Polish Code of Civil Procedure states that construction works were not carried out in accordance with the Building Law or the relevant technical conditions for the execution and acceptance of works, it may be argued that the expert did not confine the task to observing and describing the subject matter of the evidence, but instead carried out a technical and legal assessment.

Securing evidence and securing a claim – what is the difference?

Finally, it should be noted that, although the terms are similar, securing evidence is not the same as securing a claim. These are two separate institutions provided for in the Polish Code of Civil Procedure and they serve different procedural purposes.

Securing evidence, as described in this article, serves only to preserve evidentiary material where there is a risk that taking the evidence in the future will become impossible or excessively difficult. In real estate cases, it may consist primarily of carrying out an inspection and obtaining an expert opinion before proceedings are commenced.

By contrast, securing a claim is intended to ensure that a future judgment can be effectively enforced or that the legal situation of a party is provisionally regulated for the duration of the proceedings. It may include, in particular, attachment of a bank account by a bailiff, establishing a compulsory mortgage over real estate, prohibiting the disposal of real estate, or ordering or prohibiting specified actions.

Does securing evidence interrupt the limitation period?

No. Filing an application to secure evidence does not interrupt the limitation period. Such an application is not an act undertaken directly for the purpose of pursuing, establishing, satisfying or securing a claim within the meaning of the rules on limitation periods. Therefore, even after an application to secure evidence has been filed, limitation periods applicable to the claims should continue to be monitored.

Securing evidence – summary

In disputes concerning real estate, given the length of court proceedings, securing evidence by an expert opinion or by an inspection of the property may reduce the risk of losing the ability to take that 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 proceedings are commenced. It is also important that the evidence be taken in such a way that the expert establishes the existing factual condition rather than conducting a full assessment of the dispute requiring specialist knowledge at the pre-trial stage.

Securing evidence may benefit both a future claimant and a future defendant. If there is a risk that the dispute will end up in court, it is worth analysing whether securing evidence under Article 310 of the Polish Code of Civil Procedure is available, what evidence should be secured and how the application to the court should be properly formulated.