Delivery as in American films in Poland is also possible

It is enough to determine the addressee’s place of residence, deliver the claim to him and photograph this moment and such a photo becomes an excellent proof.

This idea was successfully tested by Michał Pietrzak, a legal advisor from Warmia. The question is whether it can be adopted more broadly.

Delivery fiction

Since the reform of 2019, if the delivery of a court parcel, and it is primarily about the first letter, i.e. a statement of claim, to the addressee or his household member, encounters difficulties and has not brought a result, the letter is advised twice in the letterbox.If the letter from the court is still not collected, the next mode of delivery starts, i.e. by the bailiff.

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Pursuant to Art. 1391 § 1 of the Code of Civil Procedure, the court notifies the claimant of such necessity by sending him a copy of the letter and obliging him to deliver this letter to the defendant through a bailiff. The bailiff succeeds in it once, sometimes not, and always takes extra time. The failure of the bailiff results in the suspension of the proceedings, and often their permanent blocking.

Attorney Pietrzak decided to unblock this procedure in practice.

– In my office, it happened that we personally delivered a statement of claim. It took place in the case before the District Court in Ostróda, where it was accepted and treated as rational. I personally handed over the statement of claim to the defendant, and the applicant recorded the scene with the defendant’s knowledge. But in SR in Białystok – despite the service of the defendant and the filming of the above – the court did not recognize that the defendant familiarized himself with the claim, although he himself admitted it – says the lawyer.

Let us add that the same recording in the future may constitute proof of service, e.g. after changing the address, the defendant could effectively collect the claim at the given address.

It could be easier

– Art. 139 (1) sec. 2 has aroused and still arouses serious controversy. It shifts the burden of service of the claim to the claimant, in a situation where it exceeds its capacity many times. In my opinion, filming the fact that the claim has been served is sufficient evidence for its service, but naturally, like any other evidence, it is subject to the court’s assessment of its credibility and probative force – points out Dr. Artur Rycak, attorney at law.

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– Many courts believe that, after having been provided with proof of the defendant’s presence at a given address, they renew the service of the claim, which again allows the defendant not to collect it and the whole procedure starts anew. On the other hand, some courts, after providing evidence of the defendant’s presence at a given address, do not repeat service of the statement of claim, but immediately accept a fiction of service.

These various practices in courts require standardization by the legislator, as well as bailiffs’ corrections – indicates Szymon Kowalczyk, a lawyer at Sobota-Jachira.

– For the time being, the first deliveries are handled by the court or bailiff in accordance with the principle of officiality. Although perhaps it was a good solution for the plaintiff to serve the claim on his own. I am afraid that in practice this may give rise to disputes as to whether the defendant actually received the lawsuit, and not, for example, his son or friend, etc. Is it possible to determine on the basis of the film that Jan Kowalski actually received the court parcel? Due to these disputes, the legislator has already resigned from the fiction of service upon first delivery to protect the other party, says Aneta Łazarska, judge of the District Court in Warsaw.

Opinion for “Rzeczpospolita”
Rafał Łyszczek, president of the National Council of Bailiffs

The bailiff is a public official, not a party to the dispute, and this guarantees impartiality and proper delivery of the parcel. What and when was served on the addressee must be undisputed, since it allows him to be able to defend his rights. Equally important, service by the bailiff does not arouse negative emotions in the addressee, which could arise when the other party to the dispute tries to deliver it.

The regulations on determining the current address of the person to whom the shipment is to be delivered require adaptation. Currently, the bailiff is entitled to submit inquiries to the Tax Office, ZUS, bank and SKOK. This greatly reduces the possibilities of obtaining up-to-date information. Service at the workplace may also be considered.

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