Publication date: January 23, 2025
The concept of evidence has many meanings. It can mean the course of reasoning that leads to a conviction about the state of affairs, evidentiary proceedings, means of evidence, source of evidence or evidentiary fact. In legal literature, the concept of evidence is variously defined as: a mental act, the purpose of which is to indicate the truth or falsehood of specific statements. Evidence in the strict sense is understood as a means of evidence, i.e. that means that allows one to be convinced of the existence or non-existence of facts, and thus of the truth or falsehood of statements about these facts [1]. The right to evidence also appears in the doctrine, described as: “The right to evidence can be derived from the constitutional right to court. Without evidence, the realization of the right to court would be illusory. The right to evidence should be perceived today not only as the possibility of conducting evidentiary proceedings in order to prove the truth of knowledge of facts already possessed, but also as the right to learn about other existing evidence, the taking of which before the court could enable the party to learn about information unknown to it about facts concerning its right [2]. In turn, the Code of Civil Procedure (CPC) in Article 227 states that “the subject of evidence are facts that are of significant importance for resolving the case”. A special type of evidence is evidence from the examination of a witness regulated in the provisions of Articles 258 – 277 of the CPC. This evidence is a special case, because, as a rule, its taking is completely oral, which requires the activity of the judge and the parties during its taking.
Witness testimony plays a key role in civil proceedings, as it allows the court to assess the facts that are important for resolving the case. This is particularly important because civil proceedings are based on the analysis of evidence presented by the parties, who are to prove the validity of their claims or defenses. Unlike other evidence, such as documents or expert opinions, witness statements provide direct insight into the circumstances of the events that are the subject of the dispute. Witnesses, often being people directly involved in the events, can provide details that were not reflected in the documents, which allows the court to more accurately determine the factual situation. According to Article 271 of the Code of Civil Procedure (CPC), a witness testifies orally before the court, which gives the judge the opportunity to assess not only the content but also the credibility of their testimony. During this activity, the court analyzes the testimony, is guided by both the principles of logical reasoning and life experience, to determine to what extent the information presented is coherent, consistent and consistent with other evidence in the case. This is why witness questioning is one of the most dynamic elements of the litigation, as the parties can actively participate in this activity, ask questions, raise objections to the testimony, and request clarification. An important aspect of witness questioning is the role of the parties’ attorneys. An important aspect of witness questioning is the role of the parties’ attorneys. In practice, this means that the parties’ attorneys play a key role in ensuring that the questioning is conducted in an exhaustive manner and in accordance with the interests of the represented party through their active participation in the form of asking questions to the witness during the questioning. This is an implementation of the principle of the adversarial nature of the civil procedure described in Article 232 of the Code of Civil Procedure, which ensures that the parties have the opportunity to present evidence in support of their claims and actively challenge the evidence presented by the opponent. The implementation of this principle is crucial for the fair conduct of the trial, as it allows for the arguments of both parties to be presented on an equal footing. At the same time, evidence from the questioning of a witness is closely linked to the principle of equality of the parties, which is the foundation of civil proceedings. This principle, resulting from Article 32 of the Constitution of the Republic of Poland guarantees that each party should have equal procedural rights and obligations. Equality of the parties is manifested not only in equal access to evidence, but also in the possibility of participating in the examination of witnesses. In the context of the examination of witnesses, the principle of equality of the parties is manifested, among others, in the need to provide both parties with the same opportunities to present their arguments and participate in the examination of witnesses. A situation in which the attorney of one of the parties could not participate in the examination for reasons beyond their control could lead to a violation of this principle and weaken the procedural position of the party. Consequently, the lack of appropriate protection of the party’s interests in such a case may result in an improper resolution of the case, which is contrary to the purpose of civil proceedings, which is to achieve a fair and lawful resolution. The examination of a witness as a means of evidence also plays an important role in ensuring the transparency of court proceedings. The special form of this evidence, consisting in direct examination before the court, allows for the assessment of the authenticity of the testimony in a more effective way than in the case of indirect evidence. In addition, the parties may submit questions aimed at dispelling any doubts as to the details reported by the witness, which increases the chances of a full and comprehensive determination of the factual situation. Evidence from the witness’s hearing is one of the key elements of civil proceedings, which allows for precise determination of facts and assessment of the parties’ positions. Its proper conduct guarantees the observance of the principles of adversarial nature and equality of the parties, which are the foundation of a fair trial. In order to ensure basic protection of the rights of the participants in the litigation, it is important that an attorney who will take care of the interests of the represented party can participate in the hearing. Otherwise, the principles of procedural justice could be violated, which would constitute a significant threat to the proper administration of justice.
The institution of a break in a hearing versus adjournment
In Polish civil procedure, the regulations do not directly mention the institution of a break in a hearing due to extraordinary circumstances, however, Article 214 of the Code of Civil Procedure mentions adjournment due to such circumstances. In the legal doctrine, these circumstances are defined as those that are associated with an external phenomenon of such intense force or intensity that it cannot be effectively opposed. If such a state is of a permanent nature, it usually constitutes a basis for suspending the proceedings or such suspension occurs by operation of law. Adjournment of the hearing on the discussed basis occurs when extraordinary external events demonstrate features of overpoweringness towards each entity and are of a temporary nature. Extraordinary events within the meaning of Article 214 § 1 go beyond the phenomena of force majeure and do not have to demonstrate a wider scope of their impact. They may concern the party itself or its legal representative, such as sudden illness – immediately before the date of the hearing.
In the case law of Polish courts, the issue of the impossibility of the attorney’s participation in the hearing and the consequences related to it has been raised many times. In the Supreme Court’s Resolution of 25 April 2024 (I CSK 1478/23), the Supreme Court stated that “an extraordinary event in the form of illness of a legal attorney is an obstacle that cannot be overcome, within the meaning of Article 214 of the Code of Civil Procedure only when the attorney – due to it – had no possibility of appointing his legal substitute. This position applies not only to the attorney’s illness, but also to other potential events or obstacles referred to in Article 214 § 1 of the Code of Civil Procedure.” AlsoIn the Supreme Court Resolution of 13 June 2019 (II CZ 26/19), the Supreme Court takes the position that “Pursuant to Article 214 § 1 of the Code of Civil Procedure, the hearing shall be adjourned if the court finds an irregularity in the service of the summons or if the absence of the party is caused by an extraordinary event or another obstacle known to the court that cannot be overcome. The hearing is therefore adjourned when the court is aware of the reason for the absence of the party (or its attorney) caused by an obstacle that cannot be overcome. Therefore, the relevant application should be submitted to the court as an institution in such a way that the adjudicating court has the opportunity to learn about it no later than at the moment preceding the holding of the hearing”. Apart from the Supreme Court, this issue was also raised in judgments of common courts. The judgment of the Court of Appeal in Łódź of 28 December 2015 (III AUa 1165/15) stated that “the reasons for adjourning a hearing, listed in Article 214 of the Code of Civil Procedure, also apply to the legal representative”. However, such an interpretation of the provisions is an exception in the judiciary, as courts often take the position that the absence of a legal representative in the courtroom should not affect the course of civil proceedings.
In accordance with the above arguments, the court should take into account the situation in which the attorney cannot appear on time at the hearing for reasons that occurred beyond his control. In the case of grounds for appeal, if the court refuses to order a break and conducts the examination of the witness in the absence of the attorney, one may refer to: Art. 379.point 5, which states that the invalidity of the proceedings occurs when the party has been deprived of the opportunity to defend its rights. According to the position of the doctrine, the deprivation of the opportunity to defend the rights of the party occurs in the event of simultaneous, joint fulfillment of the following conditions:
Failure to grant a motion to adjourn a hearing due to the absence of an attorney resulting from circumstances beyond his control fully meets the above-mentioned conditions for recognizing a violation of procedural law. These provisions clearly provide for the possibility of adjourning a hearing in the event of extraordinary circumstances that prevent the attorney from participating in the hearing. Such regulation serves to ensure the proper course of proceedings and protect the party’s right to a fair trial. In the case in question, holding a hearing in the absence of an attorney at a session during which evidence from the witness’s testimony is being taken constitutes a significant procedural irregularity. The presence of an attorney as a person with appropriate qualifications and experience in legal practice is crucial for the proper taking of this evidence. A professional is able to formulate questions precisely, demonstrate potential inconsistencies in the witness’s testimony and effectively protect the interests of the represented party. The absence of such a person at the hearing, especially in the context of taking key evidence, may significantly weaken the party’s ability to defend their rights. Moreover, refusing to adjourn a hearing in circumstances where the attorney is objectively deprived of the opportunity to appear leads to a situation in which the party – who does not have the appropriate preparation and legal knowledge – is forced to act on its own. In the case of questioning a witness, this may result not only in improperly asking questions, but also in omitting important issues or inappropriately reacting to the witness’s statements. As a result, such conduct violates the principle of equal opportunities for the parties in the proceedings, and thus limits the possibility of an amateur party effectively pursuing their rights. Such a procedural irregularity not only affects the party’s ability to act in the proceedings, but may also have a real impact on the final outcome of the case. Therefore, the court’s failure to comply with these provisions should be considered a serious violation, which consequently undermines the basic standards of a fair trial.
A party could effectively raise an objection to improper evaluation of evidence by pointing out the absence of its attorney during key procedural activities, such as questioning a witness. The absence of an attorney at an important moment in the proceedings has serious consequences that may affect the outcome of the case. One of the most important consequences is the inability to verify the credibility of a witness by asking questions aimed at clarifying or challenging their testimony. These questions may be crucial to discovering circumstances that support the acceptance of a different version of events than the one that the court could conclude solely on the basis of one-sided testimony. Moreover, taking such evidence without the active participation of the party or its attorney may lead to basing the verdict on evidence that is incomplete, or in the worst case – incorrect. In such circumstances, it can be reasonably argued that if the attorney participated in the activity, they would have the opportunity to ask questions or take actions that could affect the assessment of the credibility and significance of the evidence. The presence of an attorney is particularly important in the case of witness statements, which are one of the most subjective and susceptible to various interpretations of evidence. The lack of such presence may result in a one-sided assessment of the evidence by the court, which leads to an incomplete recognition of the factual situation. Finally, it should be emphasized that the lack of presence of a representative, especially in a situation where this absence was independent of his will and was duly reported to the court, should be treated as a significant factor influencing the assessment of the correctness of the evidentiary proceedings. In such a case, the party has the right to claim that there has been a violation of both procedural regulations and the principle of equality of the parties. The consequence of such negligence is not only the risk of incorrect assessment of evidence by the court, but also a limitation of the party’s right to defend their interests in the proceedings.
[1]K. Knoppek [in:] Civil Procedural Law System, vol. 2, Procedural proceedings before the court of first instance, part 2, ed. T. Wiśniewski, Warsaw 2016.
[2]M. Rejdak [in:] Code of Civil Procedure, vol. 2, Commentary to art. 2051 –4241 , ed. A. Marciniak, Warsaw 2019.