Preliminary legal opinion of court

Regardless of whether the particular party stands on the side of the plaintiff or the defendant, and regardless of how confident the participant is of its success in the proceedings, the mere fact that in certain matter a judicial proceedings is conducted is a serious interference to legal certainty of both (or even more) participants of the judicial proceedings. Often the negative impact needs not to be direct (such as prohibition of disposal of property on the basis of interlocutory order), however, its consequences in relation to (especially) an entrepreneur - defendant may be reflected also in other, by the court untreated, business relations. For the purpose of protection of the contractual parties, stipulations acknowledging that certain party is not a participant to any judicial proceedings are nowadays usual component of any sophisticated contract. It is, therefore, completely natural that both sides of the judicial proceedings will desire to learn of at least a preliminary legal opinion of the court with respect to the dealt matter, and based on this evaluate their procedural situation (chances to succeed) and accordingly take appropriate actions.

A significant change which enables participants of the judicial proceedings to familiarize with the preliminary legal opinion of the court in a particular matter and also a tool (of some sort) based on which the participants learn about the “way of thinking” of the court, is the amended wording of the provision of Section 100(1) of the Act No. 99/1963 Coll. Code of Civil Procedure, as amended (hereinafter referred to as the “CCP”), incorporated into Slovak legislation by the Act No. 384/2008 Coll. (hereinafter referred to as the “Amendment”), effective as of October 15, 2008.

Pursuant to the last sentence of the aforementioned Section 100(1) of the CCP in course of the proceedings the court may, based on the heretofore claimed and proven facts, provide the participants with its legal evaluation of the matter. Given that, it is evident that the court is entitled but not obliged to present the participants with its preliminary legal evaluation. In practice it often occurs that this new juridical institute is deemed controversial and the courts/judges unreasonably decline to provide their preliminary legal opinion. It could be, however, assumed that provision of a preliminary legal opinion is advisable at least in cases when the dispute evolved into more advanced stage, e.g. if, based on performed evidence, the court is able to formulate its legal opinion in the particular matter.

The preliminary legal opinion of the court should be perceived in broader picture, including its systematic insertion in the CCP. The Section 100(1) of the CCP in its first sentence sets out the principle of economic efficiency and promptness of judicial proceedings: as soon as the proceedings commences the court shall progress therewith, even without any further motions, in a manner that the matter is processed and decided as promptly as possible. The purpose of the preliminary legal opinion is, therefore, apparently also to contribute to full consumption of the principle of promptness, i.e. to make the proceedings more efficient. Through reasonable application of the preliminary legal opinion the court may direct the participant´s attention to what court deems to be of relevance, ergo what the participants should concentrate on (e.g. which facts the court considers as relevant and, therefore, need to be proven, or the court considers them to be sufficiently proven). On the other hand, nothing hinders the participants from concentrating on other facts, arguments and evidence, or from ignoring the preliminary legal opinion of the court, or, quite the contrary, putting even more stress on the facts which are considered by the court as irrelevant, in order to convince the court of the verity and relevance of their allegations (and at the same time thus avoid a surprising judicial decision). Furthermore, if the participants identify themselves with the preliminary legal opinion of the court, it is reasonable to assume that at their argumentation they will concentrate on those facts which are from the court´s point of view relevant, and thus significantly unburden the court, as a result of which the whole judicial proceedings may be accelerated.

As regards the content of the preliminary legal opinion of the court the legislator provided the courts with a broad discretion. It is upon discretion of the court to what extent the court will substantiate the results of its preliminary legal evaluation of the matter, and as the court is not bound to provide its preliminary opinion, it is also upon discretion of the court to decide whether the court will in fact provide the participants with any preliminary legal opinion at all. In any case the court´s preliminary opinion shall be based on heretofore presented allegations and facts alleged and proven by the participants. Not in every stage of the legal proceedings is the court capable of presenting its preliminary legal opinion. A decision of the judge not to provide the preliminary legal opinion if the proceedings is in its early stages (e.g. not all evidence have been performed) shall be considered correct. On the other hand, as the court presents its preliminary opinion in course of the proceedings, it cannot be excluded that such opinion will be presented at the very first court hearing (provided that the particular case´s circumstances enable the court to do so).

In practice one could be encountered with an opinion that the court shall not present its preliminary legal opinion if the content of such opinion shall in substantial aspects be congruent to the legal evaluation of the matter by the participants, as such procedural situation could lead to breach of impartiality of the court and eventually constitute grounds for raising objections of prejudice. Therefore, if at all, the court shall inform the participants about its legal opinion which is completely or substantially different from what has been alleged by the participants in course of the judicial proceedings. Such opinion, however, cannot be consented with. In accordance with such interpretation the court would be, when providing its preliminary legal opinion, limited only to those situations where its preliminary legal opinion would differ from legal evaluation of any participant. The fact that the preliminary legal opinion is identical to the one of the participant cannot (by itself) raise any doubts with respect to impartiality of the court. It is not an exception (quite the contrary) that in practice the courts tend to accept argumentation of one participant, as they consider legal evaluation of the matter by one participant correct (identical to the court´s own legal opinion), and decide accordingly.

The importance of preliminary legal opinion of the court consists in, inter alia, that the participants are provided with the opportunity to evaluate their current position in the proceedings (re-evaluate their chances to succeed) and in relation to that to, apart from accommodating their legal argumentation, perform some of the so-called “disposal procedural legal acts”, such as withdrawal of the action in whole or in part or initiation of settlement of the dispute. The participant may prefer to perform some of the disposal procedural legal acts especially if upon preliminary legal opinion of the court the participant objectively re-evaluates its position and comes to conclusion that judicial decision in its favor is unlikely. The preliminary legal opinion of the court may thus significantly contribute to speeding up of the judicial proceedings, and eventually decreases the participants´ costs related thereto (e.g. costs of evidence, costs of legal representation, out of pocket costs – travel expenditures, lost time, etc.).

It should be noted that the preliminary legal opinion of the court cannot be construed as any prejudging of the court´s resolution. The court is not bound by its preliminary legal opinion and at decision-making it is fully entitled to either confirm it or to rule differently, alternatively, the court may always amend or even completely change its preliminary legal opinion in the following stages of the proceedings (e.g. if new facts or evidence is revealed, etc.). From the participants´ perspective the preliminary legal opinion should be viewed as an important tool enabling them to understand the court´s way of legal thinking and at the same time enable them to formulate their legal argumentation in a manner that the court shall either confirm or change its legal evaluation of the matter. In general, the preliminary legal opinion should be positively appreciated and its application in practice (provided that the particular case´s circumstances enable that) should be consistently asserted.