Amendment to the Civil Procedure Act effective since January 2012

Procedural periods

To the most significant changes brought about by the abovementioned amendments belongs introducing of several procedural periods for carrying out of the court´s procedural acts intended to speed up the judicial proceedings. As an illustration, it may be noted that a new 60 days period was established in case of petition which, based on its content, may be considered as petition for commencement of judicial proceedings (action) which, however, is incorrect, incomplete or incomprehensible and, therefore, its correction or amendment is required. In the above event, the court shall call the plaintiff to remedy the defects of the petition in the aforementioned 60 days period. Introducing of this period significantly speeds up the civil judicial proceedings, as it is anymore not upon the discretion of the court when to call the plaintiff to amend the petition, and thus, prevents in practice abundantly occurring situation when the court calls the plaintiff to mend the defects after lapse of several months, which consequently excessively prolongs the whole judicial proceedings.

Another example of newly established procedural periods is the provision, based on which the court is obliged to send the petition for commencement of judicial proceedings together with all its attachments, provided the petition meets all statutory requirements, to the other parties of the proceedings within sixty (60) days as of its delivery to the court.

Also, pursuant to a newly established provision the court is obliged to rule on petition for accession or change of parties of proceedings within 30 days as of delivery of the respective petition or as of day of approval of the respective parties of the proceedings with accession or change (if necessary). The court shall call the respective parties of the proceeding to submit their approval or disapproval with proposed modification in parties of the proceeding within 15 days as of receipt of the respective petition.

Furthermore, a period has been established for court for rendering of decision on change of the petition. The court is primarily obliged to decide on change of the petition at the main hearing. In case it is not possible, the court shall decide within 15 days as of the adjournment of the hearing. If the court has to decide out of main hearing, the amendment introduced a period of 60 days as of receipt of the petition for change of the petition.

Contrary to the abovementioned periods which aim to speed up and making the judicial proceedings more effective, the exception of possibility to deliver documents electronically to parties of the proceedings has been extended. Until December 31, 2012 it was not possible to deliver electronically court´s decisions and documents for personal delivery. This exception was extended by the amendment also to writ of summons. On the other hand, in our view the abovementioned does not mean that the court may not, with the aim of timely informing of parties of the proceedings, deliver these documents via electronic mail, however, with the exception that the legal fiction of delivery upon lapse of 5 days from the sending via electronic mail shall not apply.

Consent with decision issued out of main hearing

One of the significant changes is the exception out of the principle of verbal and public proceedings. On the basis of the above provision the consent of the parties of the proceedings with deciding of the matter without main hearing or their explicit waiver of the right to public proceedings before the Court of First Instance shall apply also to proceedings before theAppelate Court. With respect to the aforementioned it is important to point out that the remaining two conditions have to be met too, i.e. decision of the court out of the main proceedings must not be contrary to public interest and the matter may be resolved on the basis of documentary evidence submitted by the parties of the proceedings.

Adjournment of main hearing

Another significant change concerns the terms of adjournment of the main hearing, so as to prevent, in practice rather abundant, obstructions to the proceedings caused by the parties of the proceedings or their legal representatives. The main hearing may still be adjourned only due to important reasons, however, the conditions of notification duty of the party of the proceedings who requests the adjournment are stricter now. As from January 1, 2012 the party of the proceedings is obliged (cite) ….”notify the court on the reasons for adjournment of the main hearing without any undue delay upon it learned about such reason or could have learned of such reason, or, taking all the circumstances into account, could have anticipated such reason”.

The amended provision stipulates also minimal content essentials of the petition for adjournment of main hearing in the following extent:

a) the reason due to which the main hearing should be adjourned;

b) day on which the petitioner learned of the reason;

c) if possible, information on electronic address, telefax or telephone number on which the court shall without the undue delay inform the petitioner about how the petition

was adjudged;

d) (if applicable) opinion of the doctor that the petitioner or his/her legal representative is incapable to appear before the court without seriously endangering of his/her life or threat of deterioration of his/her health condition, if the health condition of the petitioner or of his/her legal representative shall be the reason for adjournment of the main hearing.

If the court accepts the proposed reason for the adjournment of the main hearing, it is obliged, without any undue delay, to inform the other parties of the proceedings who were summoned or notified about the main hearing, the court shall at the same time inform all the parties of the proceedings on the date of the adjourned hearing, if possible.

In this connection it is inevitable to emphasize another change: „If the court decided on adjournment of main hearing on the basis of petition of party of the proceedings due to serious reason on the part of such party, which the petitioner caused or which is a result of coincidence on his/her part, the opposing party of the proceedings who appeared before the court is entitled to EUR 15 from the petitioner. “

The cited provision provides the opposing party with the possibility to claim a certain kind of lump sum damages for the damage incurred due to the fact that the opposing party was present at the main hearing which was adjourned due to reason on the part of the other party. The opposing party is in such case entitled to claim EUR 15 from the other party by means of petition to the court filed not later than within 15 days as from the date when the adjourned hearing should have taken place.

It was further stipulated that the party of the proceedings represented by an attorney at law who is present at the main hearing which was adjourned due to reason on the part of the legal representative of the opposing party, who is also an attorney at law, is entitled to EUR 100 from the party which is represented by such attorney at law. The cited provision requires fulfillment of the following conditions:

a) both parties are represented by attorneys at law;

b) the attorney at law of the party which claims the amount of EUR 100 was present at the main hearing which was adjourned due to serious reason on the part of the opposing party´s attorney at law, which the opposing party´s attorney at law caused or it is a result of coincidence which happened to him;

c) the party whose attorney at law was present at the main hearing has to file a petition with the court for adjudication of the amount of EUR 100 against the opposing party within 15 days as from the date the adjourned main hearing should have taken place.

Given that the right of the party of proceedings to request the abovementioned sums from the opposing parties applies also in case of unexcused absence at the main hearing, we believe that the amendment introduces a so-called absolute objective liability of the party for absence of its attorney at law at the main hearing vis-à-vis the opposing party.

Only in case if a filed petition for adjournment of the main hearing fulfilled all the statutory criteria and the period for notification of serious reason on the part of the party of proceedings or its legal representative was observed and such petition was delivered to court no later than 3 days prior the date of the main hearing, the party´s right to request the abovementioned sums from the opposing party shall not arise.

Costs of proceedings

The amendment has introduced an obligation of the court to oblige the plaintiff to deposit an advance payment for the costs of proceedings in the amount of 5% from the sum claimed by the plaintiff regardless of the claim attribution in the period of 60 days, while all the following conditions have to be met:

a) the plaintiff claims a financial sum exceeding 400 times the living minimum for one adult person (i.e. EUR 189.83 as from the July 1, 2011);

b) the plaintiff does not meet the conditions for exemption from the court fees in full extent;

c) the defendant requested the court to oblige the plaintiff to deposit the advance payment for the costs of proceedings;

The amendment has also introduced an obligation of the court to call also the defendant to deposit the advance payment for costs of proceedings in a period not longer than 60 days. We are of the opinion that the CCP deliberately uses the term „call to deposit advance payment“ instead of „oblige to deposit advance payment“, as it stipulates: “If the plaintiff fails to deposit the advance payment in the set period and the defendant who is obliged to deposit the advance payment deposited it, the court shall abate the proceedings within period of 15 days commencing from the elapse of the period for depositing of advance payment.”

The court shall decide on the deposited advance payment within 15 days as from validity of the decision on the merit or decision on the basis of which the proceedings is abated, while the advance payment shall be firstly used for reimbursement of the state´s costs vis-à-vis the parties subject to the result of the proceedings.

Depositing of the advance payment shall not limit the court from obliging the party which does not meet conditions for exemption from the court fees to deposit the cost for exhibits.

Example: If the plaintiff files a petition for amount of EUR 76,000 including the claim attribution, the court fee which has to be paid before the court commences proceedings on the merits is 6% of value of the matter of proceedings, i.e. EUR4,560. Inthe event that the defendant requests the court to oblige the plaintiff to deposit advance payment for costs of proceedings, the plaintiff will be obliged to deposit to the account of the court an amount of EUR 3,800 within 60 days. Altogether, the plaintiff will be obliged to deposit an amount of EUR 8,360 to the account of the court, while this amount may be increased by advance payment for exhibits costs.