The reservation to the minutes is simply a message by the organization who draws the court's attention to the failure to comply with civilian procedure rules.
Restriction to the minutes for breach of the rules of procedure by the court – essence of the institution
According to the wording of Article 162(1) of the Code, after the amendment of the civilian Procedure of 7 November 2019, the organization should draw the court's attention to the failure to comply with the rules of procedure by requesting a reservation to the Protocol. A reservation may be made at the latest at the next meeting.
Paragraph 2 of Article 162 k.p.c. states, in turn, that the organization replaced by a lawyer, legal adviser, patent lawyer or lawyer General of the Republic of Poland, who did not rise any objection, is not entitled to trust on this failure in the course of the proceedings. This does not consequence in termination or withdrawal of the power of attorney. This provision shall not apply where the provisions of the proceedings, the infringement of which should be taken into account by the court of its own motion, or where a organization who is likely to have raised no objections without responsibility (§ 3).
Reservation to the Protocol and Amendment to the Protocol of 7 November 2019 – obligations of the parties
In the version prior to the amendment of the civilian Procedure Code of 7 November 2019, Article 162 provided that the parties could draw the attention of the court to the failure to comply with the rules of procedure by requesting a reservation to the minutes, with the organization who did not object losing the right to trust on this failure in the course of the proceedings, unless it was the rules of procedure which the infringement of the court should have taken into account on its own initiative or that the organization claimed that it had not objected without its fault.
The erstwhile wording of Article 162 kpc did not so introduce a discrimination between a organization which was not represented by a professional procedural typical and a organization which held specified a representative. The negative consequences of the deficiency of a reservation to the Protocol so affected both categories of parties equally.
Currently, Article 162 k.p.c. negative procedural effects of not declaring a reservation to the Protocol connects only to the activities of the professional representative.
Purpose of the provisions on the work to rise objections to the minutes of the gathering
The literature assumes that the intent of the provisions of Article 162 k.p.c. is to encourage the initiative of the parties to rapidly remedy infringements of the provisions of the procedure they see and to let the court to rectify the mistake without delay. This besides accelerates and improves the procedure. The nonsubjective of Article 162 k.p.c. would be hard to accomplish on the presumption that a organization represented by a professional typical who did not rise a applicable objection in due time may trust on a procedural failure in the midst of the appeal.
Reservation to the Protocol and the kind of infringement of the court covered
An effort to answer the question of what deficiencies of the court concerns the work to rise objections to the minutes of the sitting was made respective times by the ultimate Court.
In the judgement of 3 February 2010, the decision of the II CSK 286/09 The ultimate Court stated that the wording of regulation 162 kpc indicates that it concerns all procedural deficiencies regardless of their nature, but for those to be considered for ex officio.
On the another hand, in the message of reasons for the judgement of 24 September 2009, IV CSK 185/09, the ultimate Court pointed out that, due to the diversity, it is not possible to make a catalogue of possible procedural deficiencies requiring the fulfilment of the obligations referred to in Article 162 of the Code, but that the wording provided for in that provision only refers to the deficiencies committed by the court in the course of the proceedings, and specified can be counted as omission by the court of the evidence requested by the organization if it is expressed in the decision rejecting the application for evidence.
Such a failure may besides be issuing a decision to make inadmissible evidence or a decision to hold a proceeding with the public, which should take place at a closed door, to grant a organization a period longer than the statutory period to execute a peculiar procedural action or to close the proceeding without giving the parties a floor.
However, it is not possible in these categories to consider specified procedural acts which are covered by the discretion of the court; it is difficult, for example, under Article 162 of the Code, to ask for a reservation to be entered in the minutes in respect of the court’s acceptance of evidence of its own motion.
On the another hand, it is appropriate to rise a reservation to the minutes against the annulment by the court of each individual question referred by the typical to the witness.
Reservation to the Protocol and information by the court of a procedural action subject to alert
A reservation to the minutes referred to in Article 162 k.p.c. may, in any event, relate only to specified deficiencies in the conduct of procedural proceedings by a court which has been notified to the parties by order or order. In another words, in order for a organization to be able to draw the attention of the court to a failure to comply with the rules of procedure, he must know that the court has taken or intends to take a circumstantial procedural action. It so concludes that the intent of this provision is to encourage the procedural initiative of the parties, to prevent their disloyalty by obliging the court to keep up-to-date the attention of any procedural misconduct in order to destruct it without hold and to prevent the parties from deliberately tolerating specified deficiencies with a view to subsequent usage of them in appeals (yes: ultimate Court judgement of 4 October 2006), II CSK 229/06).
Similarly, the ultimate Court in its resolution of 27 June 2008, III CZP 50/08 (OSNC 2009, No. 7-8, item 103) considered that the reservation to the Protocol refers only to those provisions which are not individually contested and may be amended or repealed as appropriate.
No work to object to any possible future deficiencies
On the another hand, it is not possible to require the party’s typical to make any reservations about possible future deficiencies in the course of the proceedings, fearing the failure of rights. Nor can a suspect represented by a proxy be required to supply that the court will take into account the plaintiff's requested claims in its ruling and make factual findings on the basis of evidence which the plaintiff has not reported or reported late. In addition, there is no situation in which the court informs the parties before giving a ruling, which evidence it intends to take into account and which claims the parties make.
The ultimate Court in its judgement of 3 February 2010, No. II CSK 286/09 concluded that if the proof covered by the preclusion is accepted, the reservation to the Protocol under Article 162 of the Code should be notified.. However, it is hard to require the applicant to make specified a reservation if the court has not made a decision to let evidence at all and what claims and evidence have been assessed has been informed of the reasons for the judgment.
Types of order of the court the content of which is subject to a reservation to the minutes
It should be assumed that the precision provided for in Article 162 of the Code besides covers those deficiencies which have affected the result of the procedure and may have been the subject of appeals. This position was expressed in the ultimate Court case-law (cf. judgement of 10 December 2004, III CK 90/04, TSO 2006, No 6, item 69).
However, as a peculiar case of specified deficiencies, it is essential to consider the situation in which the infringement of the provisions of the procedure is reflected in the order adopted, since any of the provisions issued in the course of the proceedings before the first instance may be straight contested and others may be challenged by virtue of Article 380 (i.e. at the request of the party, by the second instance, where those provisions were not subject to appeal by way of a complaint and had an impact on the resolution of the first-instance case).
This issue has already been discussed in the doctrine, where respective categories of judicial decisions have been highlighted in this respect:
- in the first category of provisions, those which are aggrieved are included.
- to the second provision of endless proceedings in a case which may be amended only in the event of a change in circumstances, and thus binding the court which issued them (Article 359(1) of the Code),
- and to the third, those which are not individually contested and may be amended according to the circumstances of the case. Only those provisions are referred to in Article 162 kp.c.
A akin position was expressed by the ultimate Court in its resolution of 27 October 2005, III CZP 55/05 (OSNC 2006, No 9, item 144) and judgement of 15 June 2007, II CSK 96/07 (not publ.).
Scope of the provisions on the work to rise objections to the minutes of the court meeting
It should be noted that Article 162 is included in the Code of civilian Procedure as part of the general rules on procedural proceedings and so besides applies in separate proceedings, unless otherwise provided in those proceedings (yes: ultimate Court judgement of 3 February 2010, act No. II CSK 286/09).
Omission of objection to the protocol and instigation control
According to settled case-law, a organization (now, after the amendment of Kpc of 7 November 2019 – a organization represented by a professional agent) cannot effectively object to the court's failure to comply with the rules of procedure if it has not brought to the attention of the court under Article 162 kpc. Thus, the deficiencies referred to in Article 162 (and the related institution under Article 239 of the Code), in specified a situation, are avoided from any instituency control (yes: resolution of the ultimate Court of 27 October 2005, III CZP 55/05, OSNC 2006, No 9, item 144). The exception here is the situation as regards a breach of the rules which the court takes into account on its own initiative, or a organization who is likely to have raised no objection without its responsibility (Art. 162 §3 kpc).
Reservation to the minutes for failure of the court to accept evidence
The exclusion from the interior control of a possible failure of a court to let evidence which the organization has failed to bring before that court, as a first instance court, only deprives the organization of the right to trust on that failure in the course of the proceedings (Article 162). However, this does not deprive the second instance of the anticipation of specified evidence being admitted in the appeal proceedings.
It must be borne in head that Article 382 of the Code, which states that a second instance court shall regulation on the basis of the material collected in the proceedings at first instance and in the appeal procedure and Article 381 of the Code, which states that a second instance court may omit fresh facts and evidence if the organization may have relied on them in the proceedings before the court of first instance, unless the request to trust on them subsequently, has been stressed respective times in the case law that the Polish law has adopted a model of full appeal (‘with the benefit of novelty’), which means the admissibility of the second instance of fresh facts and evidence before the court and the basis for the decision of that court besides on fresh facts.
This was confirmed by the ultimate Court's judgement of 12 September 2000, Case I PKN 28/00, OSNP 2002, No 7, item 161 stating that the anticipation and admissibility of establishing fresh facts and evidence is simply a principle. Although Article 381 of the Court of First Instance, in accordance with the rule of the concentration of the procedural material before the court of first instance, allows the court of second instance to disregard the fresh facts and evidence raised only in the appeal procedure erstwhile the conditions laid down in that provision are fulfilled (so: judgement of the ultimate Court of 10 May 2000, III CKN 797/00, Prok. and Pr. 2000, No 10, item 42), it does not preclude the court from taking into account the second instance of the fresh facts, even if the organization may mention them to the court of first instance (so: judgement of 12 September 2000, I PKN 28/00, OSNP 2002, No 7, item 161).
The court of the second instance so has the power to carry out evidence which the Court of First Instance failed to take into account (by issuing a formal order to dismiss an application for evidence to which no objections have been raised), and the organization to the power cannot competition on the basis of a plea of infringement of Article 162 (yes: ultimate Court judgement of 10 May 2012, II PK 215/11, OSNP 2013 No 9-10, item 106; of 2 July 2009, I UK 37/09, LEX No 529678).
In the absence of any work to rise objections to the protocol in respect of a breach of the rules of procedure by the court
The preamble to the pleas provided for in that provision does not apply only to specified deficiencies which render the proceedings invalid (yes: resolutions of the ultimate Court of 27 October 2005, III CZP 55/05, OSNC 2006, No 9, item 144 and of 27 June 2008, III CZP 50/08, OSNC 2009, No 7-8, item 103, judgments of the ultimate Court of 26 August 2009, I CSK 13/09, not published, of 24 September 2009, IV CSK 185/09, OSNC-ZD 2010, No B, item 65, of 3 February 2010, II CSK 286/09, OSNC 2010, No. 9, item 125, of 8 April 2010, II PK 127/09, OSNP 2011, No. 19-20, item 248, of 22 July 2010, I CNP 100/09, not publ., of 14 December 2011, I CSK 374/11, not publ., of 29 August 2013, I CSK 713/12, not publ. and of 17 June 2014, I CSK 401/13, OSNC-ZD 2014, No. C, item 49).
The ultimate Court in its judgement of 3 February 2010, No. II CSK 286/09 He shared the view that the rules on preclusion are mandatory, but that does not mean that, in any event, a breach of the procedural provisions of the mandatory nature of the second instance should, if specified a plea was raised in the appeal, be taken into consideration whether the organization in the course of the proceedings before the first instance has made an appropriate reservation to the minutes.
It should be pointed out that the work to take account of procedural shortcomings as an ex officio concerns only deficiencies leading to the annulment of the procedure (Article 379 k.p.c.) and those referred to in Article 202 k.p.c. This work so does not apply to infringements of another provisions, even of a mandatory nature.
Refusal to enter the party's reservations in the minutes
Where a court refuses to enter a party’s reservation in the minutes, the organization may, in accordance with the wording of Article 160 kpc, request the completion of the minutes, not later than at the next sitting, and as regards the minutes of the proceeding followed by the closing of the judgment, as long as the case is in court. The President's order may be appealed to the court within a week of service of the order.
Failures of the appointed justice and the requested court
Pursuant to Article 239 kpc, the appointed justice and the requested court shall have the right of the president and the right of the court of judgement in respect of the evidence sought. The parties may draw the attention of the court no later than at the nearest trial.
On the subject of probative preclusion – restrictions on the making of late claims and evidence in civilian proceedings – read here
