CMS Expert Guide to Digital Litigation in Poland

The digitalisation of the Polish civil justice system has increased considerably in recent years. The Ministry of Justice reports that 30.7% of cases were handled in the courts via ICT systems in 2021, which represents a 7% increase compared to 2020. The most significant changes in this regard have taken place in registration proceedings such as introduction of the Electronic Land and Mortgage Register and the electronic National Court Register. Since 1 July 2021, there has been full digitalisation of the Register of Entrepreneurs of the National Court Register (i.e. all applications are submitted electronically).

There has also been a significant acceleration of digitisation in litigation, which is, among other things, the result of the COVID-19 pandemic and the consequent restrictions on direct contact with the courts. These are current examples of the digitalisation of litigation:

• Remote hearings – parties to proceedings, as well as witnesses and experts, do not have to appear in court in person;
• Digital recording of hearings – courtrooms are equipped with digital audio and video equipment for recording hearings; parties to proceedings can access the recording of hearings via the Courts Information Portal;
• e-Service – a system of service of court letters addressed to professional attorneys through the Courts Information Portal;
• Electronic writ-of-payment proceedings – a litigation procedure for pursuing certain monetary claims, which can be processed entirely in a digitalised manner;
• Random Case Allocation System for Judges –  an algorithm for random allocation of panels to ensure that they are randomly allocated to individual cases;
• e-Payment – an electronic system for the payment of court fees;
• e-Auctions – a form of public auctions in enforcement proceedings conducted electronically at the request of creditors.

Further development of the digitalisation of the civil justice system in Poland is planned. The adopted objective is the full digitalisation of the judiciary, ultimately enabling access to justice without leaving home.

The most relevant digital and technical measures currently available in litigation relate to remote hearings, digital recording of hearings, and e-Service.

Remote hearings 

Currently, remote hearings are regulated by the Act of 2 March 2020 on special measures related to the prevention, counteracting and combating COVID-19, other infectious diseases and emergencies caused by them (uniform text, the Journal of Laws of 2021, item 2095). These are episodic provisions introduced in connection with the COVID-19 pandemic for the duration of an epidemic state or an epidemic emergency and for a period of one year after the cancellation of the most recent of these.

Remote hearings are carried out by means of technical devices enabling them to be conducted remotely with simultaneous direct transmission of video and audio, so that persons participating in the hearing do not have to be present in the court building. The conduct of a remote hearing may be waived only if it is necessary to hear the case non-remotely. At the request of a party or summoned person notified at least five days before the scheduled date of the remote hearing, the court provides with the possibility to participate in the remote hearing in the court building if the party or summoned person indicates in the request that he or she does not have the technical equipment to participate in the remote hearing outside the court building.

In civil proceedings, the court commonly uses remote hearings. It is a popular solution, and from July 2020 to the end of 2022, a total of more than 500,000 hearings were held in remote mode. Legislative work is currently underway to introduce these solutions permanently into Polish civil proceedings.

e-Service

Currently, e-Service is also functioning on the basis of the episodic legislation introduced in connection with the COVID-19 pandemic.

Pursuant to the regulations in force, the court serves court letters on an advocate, attorney at law, patent agent or the General Counsel to the Republic of Poland by entering their content in the information and communication system used to make such letters available (the Courts Information Portal). This does not apply to letters, which are subject to service together with copies of the parties’ pleadings or other documents not originating from the court.

The date of service is the date on which the recipient became acquainted with the letter entered in the Courts Information Portal. In the absence of acquaintance, the letter is deemed to have been served after the expiry of 14 days from the date when the letter was entered in the Courts Information Portal. Service of the letter via the Courts Information Portal is waived if such service is impossible due to the nature of the letter.

Following the introduction of the new system at the beginning of July 2020, more than 13.5 million documents have already reached professional attorneys through the Courts Information Portal, including approximately 5.6 million service of process. The number of users of the Courts Information Portal who are professional attorneys handling court cases is approaching 100% (almost 54,000 people). In total, more than 340.8 million documents and almost 10.2 million recordings relating to 68.7 million published cases have been uploaded to the Courts Information Portal. It is estimated that e-Service has already resulted in a saving of more than PLN 43 million by the Polish State Treasury.

Legislative work is currently underway to permanently introduce provisions on e-Service into the Code of Civil Procedure. At the same time, it is planned to extend the scope of application of this form of service.

Digital recording of hearings

The Code of Civil Procedure provides for the recording of the hearings by means of an audio and video recording device. More than 2,500 courtrooms in Poland have been equipped with digital audio and video equipment for recording hearings. More than 9.2 million hearings have already been recorded that way.

The parties to the proceedings can access the recording of the hearing via the Courts Information Portal. The recordings fulfil the role of electronic minutes of court sessions, which shortens the time of the hearings.

Remote hearings and digital recording of hearings are generally mandatory, unless the court decides otherwise. Currently, e-Service is used only for service of documents from the court addressed to professional attorneys. 

Polish jurisdiction does not have a fully digitalised litigation process in place. It is definitely difficult to list all the measures that should be taken in order to achieve this state. Nevertheless, the following is undoubtedly necessary in the first place:

• Mandatory drafting and service of all pleadings by all parties in digitalised form; 
• Easy access to fully digitalised case files, including digitalisation of files previously made in traditional form.

The above-mentioned legal acts as well as regulations on technical and organisational measures addressed to the courts and the administration constitute rules that specifically address the use of technology in litigation. 

There are plans to further increase the digitalisation of litigation. In addition to the previously described permanent inclusion of remote hearings and e-Service in the Code of Civil Procedure, the possibility to send and receive all court letters electronically will be introduced. The court will be able to use this measure for all parties, including those not represented by professional attorneys. In addition, it is planned to create an application on Smartphones, which permits the sending of letters to the court to obtain information on the progress of cases and access digitalised case files. In the long term, this is expected to lead to the full digitalisation of court files.

There are currently no rules in place that specifically address the use of AI in litigation. Preliminary discussions are underway for the application of AI in litigation in a way that excludes or at least significantly reduces the human factor. No further legislative decisions are expected before the adoption of the relevant EU regulations (e.g. currently proposed Artificial Intelligence Act, COM(2021) 206 final).

Regulations concerning technical measures to prevent unwanted access and IT-security breaches are mostly of a general nature. As an example, one such technical legal acts is the regulation of the Minister of Justice of 2 March 2015 on audio or video recording of a public hearing in civil proceedings (Journal of Laws 2023, item 309) under which the recording will be preserved by means of devices and technical means using digital technology allowing the recording to be preserved on a computer data carrier. The devices, technical means and computer data carriers must ensure:

• integrity of the recording;
• copying of the record between the devices, technical means and computer data carriers;
• preservation of the recording, in particular against loss or unwarranted alteration;
• the reproduction of the recording also by means of devices and technical means correcting or amplifying the recorded sound or image;
• making the recording available on a computer data carrier;
• the possibility of ongoing control of the recording that was made.

Metadata (i.e. a set of logically linked, structured information describing the record, facilitating its retrieval, control, understanding and long-term storage and management), which are essential elements of the structure of a fixed record, include the following:

• identifier – an unambiguous marker of the record that allows its identification;
• creator – the entity responsible for the content of the record, identified in particular by the name of the court, division, section, if any, and data identifying the record preparer or the person authorised to make an amendment, specifying their role in the process of creation or acceptance of the record or its amendment;
• title – the name given to the record, including the case designation and file reference;
• date – the date the record was created;
• format – the name of the data format or formats used for the record;
• access – specification to whom, under what conditions and to what extent the record may be made available; 
• type – identification of the primary type of record (e.g. audio, moving image) based on the Dublin Core Metadata Initiative type list;
• qualification – the archival category for the record in which the record was created or for an authorised amendment to the record is assigned;
• grouping – an indication of the affiliation of a record to a case file, defined in particular by the reference number of that file;
• relationship – an indication of the direct connection with another record or annotations and an indication of the type of this connection.

Regarding rules applying to the use of data, data protection regulations apply though not without restrictions. In particular, Articles 15 and 16 GDPR – to the extent that specific provisions provide for a separate rectification procedure – as well as Articles 18 and 19 GDPR do not apply to the processing of personal data in court proceedings, in court registers or in court information and communication systems (Article 175dc of the Act of 27 July 2001, law on the organisation of common courts, uniform text uniform text, the Journal of Laws of 2023, item 217).

The current manner of digitalisation of litigation has not yet led to a noticeable increase in new risks for businesses, such as a rise in legal tech companies collecting claims. 

Apart from the above-described plans to increase the digitalisation of litigation, there are currently no specific tools or processes aimed at improving accessibility to legal services. Undoubtedly, further development of the described measures will affect the legal market in Poland analogically to the other EU member states.