Change of legal basis by the court and the right to a fair civil trial

Abstract

Open AccessChange of legal basis by the court and the right to a fair civil trialAgnieszka Laskowska-HuliszAgnieszka Laskowska-HuliszSearch for more papers by this authorhttps://doi.org/10.7767/9783205217381.105SectionsPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinkedInRedditEmail About1. Introductory remarksParties asserting their rights in front of the court or taking up their defence have the right, and sometimes the obligation, to cite the legal basis of their demands. It is true that the law does not impose an obligation on the parties to indicate the legal basis of their demands, although by virtue of the provisions of the law, a party may indicate the legal basis of its demands and requests (e. g., in a preparatory letter) (Article 129 § 2 of the Code of Civil Procedure) or at a hearing (Article 210 § 1 of the Code of Civil Procedure). On the other hand, pursuant to Article 2053 § 4 of the Code of Civil Procedure, a party represented by an advocate, legal counsel, patent agent or the General Prosecutor’s Office of the Republic of Poland, may be obliged by the presiding judge to also indicate in the preparatory letter the legal basis for its demands and motions, limiting the scope of this indication as necessary. Furthermore, as of 7 November 2019, Article 1562 of the Code of Civil Procedure entered into force, according to which, if in the course of the hearing it turns out that the demand or motion of a party may be decided on a legal basis other than that indicated by the party, the parties present at the hearing must be warned about it. Against this background, questions arise as to the legal effect of a party’s failure to warn of a change in the legal basis for the decision; whether this obligation also arises when the court becomes doubtful about the legal basis for the decision outside the court session; and what the significance of the party’s reference to the legal basis is. It is also worth considering a situation in which a party fails to indicate the legal basis of its claim but constructs the factual situation in such a way that it falls under the provisions of a specific legal standard; whether, in such a case, the court will also be under an obligation to inform the party about the change of the legal basis for its decision and what, if any, legal consequences arise from the lack of such an instruction, and in particular, whether the lack of such an instruction and ruling on a different legal basis than that indicated by the party will infringe the right to a court, including the right to a fair civil trial regulated by Article 45 of the Constitution of the Republic of Poland. Pursuant to the indicated provision, everyone has the right to a fair and public hearing of a case (without undue delay) by a competent, impartial and independent court. The literature indicates that this right includes the following rights: the right of access to a court (i. e., the right to initiate the procedure before the court); the right to appropriate shaping of the court procedure in accordance with the requirements of justice and transparency; and the right to decision of the court (i. e., to obtain a binding settlement of one’s case).12. Legal basis of the decision vs. legal basis of the claimAs indicated at the outset, the applicable legal provisions do not impose an obligation on the claimant to indicate the legal basis on which it bases its claim. In accordance with the principle da mihi factum dabo tibi ius, the court ex officio, on the basis of the facts presented by the plaintiff, should apply the appropriate substantive law.2 It is the plaintiff’s task to plead the facts, while the court’s task is to apply the appropriate legal standard (i. e., to establish the legal basis for the decision).3 The facts invoked by the claimant and subsequently established by the court determine not only the scope of legal protection sought by the party; they are also decisive in determining the boundaries of res judicata in the event of the trial ending with a final and binding judgment. Therefore, if the plaintiff does not indicate the legal basis of his/her claim, it is undisputed that the choice of this basis belongs to the court, for which, in principle, in such a case, the facts relied on by the plaintiff and the manner in which the claim was formulated are of fundamental importance. The principle of iura novit curia applies here. If it follows from the facts pleaded in the application that the claim is justified in whole or in part, it should be accepted to that extent, even if the claimant does not indicate the legal basis or the one cited by him or her turned out to be incorrect.4More problematic, however, is the issue of the plaintiff’s assertion of the legal basis or grounds for his or her claim and its relevance to the court’s decision. Weitz points out that two important issues should be distinguished here. The first is related to how to assess the plaintiff’s invocation of the legal basis of the demand from the point of view of determining its factual basis, while the second concerns whether the plaintiff may indirectly influence the legal basis on which the court will consider its demand in such a way that it shapes its factual basis accordingly.5 Against this background, a number of statements have been formulated in court case law and literature as to the significance of such a basis for the court’s ruling. It is an isolated and unacceptable view that an award of a sum of money that is within the quantum limits of the claim, but on a different legal basis, constitutes an award in excess of the claims.6According to another view expressed in the case law of the Supreme Court – which has undergone some modifications in attempts to move away from a strict approach to the indication by the plaintiff in the statement of claim of the legal basis for the claim – it is the court’s, not the party’s, task to determine to which legal provision the statement of claim should be subordinated in connection with its grounds. In this view, the framework for adjudication is the claims that arise from the facts asserted by the claimant throughout the proceedings. It is the court’s elementary duty to carry out a proper subsumption, and which legal qualification of its claim the plaintiff has indicated or pushed for is completely irrelevant to the course and outcome of the trial. Irrespective of the views of the claimant requesting that the amount indicated in the statement of claim be awarded, it is the deciding court that determines whether the asserted (undisputed) or established factual basis of the claim justifies awarding the benefit and in what amount. It is more than obvious that allowing the claim on a legal basis other than that indicated by the claimant on the basis of the presented (established) facts does not infringe Article 321(1) of Kodeks Postępowania Cywilnego (the Code of Civil Procedure).7 Thus, the inability to grant the claimant’s request on the legal basis indicated in the statement of claim does not exclude granting this request on another legal basis.8 In turn, in other decisions, the Supreme Court first expressed the view that the indication by the claimant of the provisions of substantive law intended to constitute the legal basis of the decision, although not required, is not irrelevant for the course and outcome of the case, since this basis also indirectly determines the factual circumstances justifying the claimant’s demand. As soon as it is invoked in a specific case, a legal provision, functioning in the system of applicable law usually as an abstract and general norm, becomes a carrier of specific factual content. This is because the provision, when invoked as an argument in a dispute and thus assuming the role of one of its factors, indirectly also provides assertions and knowledge of facts: namely, those which, selected from the totality of the circumstances behind the claim, are capable of fulfilling the provision’s hypothesis. In addition, the relationship between the parties may sometimes be highly complex and complicated, both in fact and in law, and the arguments of the parties may have their source or basis in different provisions of law. Thus, if the litigant simultaneously builds some construction of his or her claim, embedding it in a strictly defined substantive law provision, he or she thereby delimits the disputed and non-contentious circumstances that are to constitute the factual basis of the judgment. It should also be emphasised that the judicial process, as a formalised and highly structured activity, requires the participating persons and bodies to take deliberate and pragmatic action. This applies in particular to the professional deputies of the parties (advocates and legal advisers) who, when formulating the claims and their justification or speaking on the legal issues involved in the case, must expect that their statements will be treated professionally, with all procedural consequences.9 In later decisions, however, the Supreme Court softened its view, adding that the plaintiff’s indication of the provisions of substantive law intended to constitute the legal basis of the decision may only indirectly specify the factual circumstances justifying the claim, but such information remains irrelevant to the decision itself.10 An indication of the legal basis for the claim asserted does not bind the court, which is obliged to consider the case comprehensively and take into account all legal provisions that should be applied in the case under consideration.11 The legal basis of the claim indicated by the plaintiff’s professional representative is not binding on the court. Nevertheless, such a legal basis is important, first of all, in that it determines the leading legal standard, which in turn determines what facts in the case are relevant (Article 227 of Kodeks Postępowania Cywilnego (the Code of Civil Procedure)) and further, what evidence is necessary to sufficiently clarify the disputed circumstances (Article 217 § 2 of Kodeks Postępowania Cywilnego (the Code of Civil Procedure)). Secondly, a party and even its professional representative may be mistaken as to the correctness of the indicated legal basis for the claim. If one were to stop there, then in a subsequent case based on the same factual basis, doubts could arise as to the previous adjudication of a specific subject matter between the same parties (Articles 187 of the Code of Civil Procedure and 366 of the Code of Civil Procedure).12 However, it cannot therefore be assumed that the invocation of a specific legal basis implies that the claimant submits to judgment only those facts that may serve to apply the substantive law standard indicated by it. The plaintiff’s invocation of a factual basis for the claim, which may be qualified according to different legal grounds, justifies the court’s consideration of each of them when hearing the case, and the application of one of them, even if different from the one indicated by the plaintiff, does not justify the allegation of a violation of Article 321 § 1 of Kodeks Postępowania Cywilnego (the Code of Civil Procedure).13 It is also pointed out that it is necessary to assess all the facts cited as justification for the claim and not only those selected in terms of the legal basis invoked.14 Therefore, the view that the determination of the claimant’s legal basis for claiming excludes the possibility of assessing the claim from the point of view of other legal norms cannot be accepted. Such rigour finds no justification either in the applicable legislation or in the general principles of procedural law.15The literature indicates that although the substantive law provisions cited by the parties do not bind the court, their indication is not irrelevant for the course and outcome of the case. By indicating the legal construction of claims or motions based on strictly specified legal provisions, the parties set the boundaries of disputable and non-contentious circumstances.16 However, this does not mean that the court is bound by the legal basis invoked by the parties. First and foremost, the court should assess the dispute submitted to it for resolution in light of the applicable legal provisions and apply them appropriately, even if the parties have not invoked them.17 Weitz argues that there is no justification for the generalisation that the invocation of a particular legal basis means that the plaintiff submits to judgment only those facts which can serve to apply the provisions indicated. This position would be correct only if the plaintiff, in addition to stating a given legal basis for the claim, does not allege any facts beyond those which he or she has implicitly established by stating the legal basis for the claim and which are sufficient for the application of the indicated provisions.18 On the other hand, in regard to a situation in which the claimant has limited the factual basis of the claim, citing in support of this claim only those facts which, in his or her opinion, correspond to the hypothesis of the legal basis of the claim indicated by him or her, the view must be shared, which may lead to a limited legal verification of the claimant’s claim by the court. Consequently, in the event that the court does not share the plaintiff’s views as to the legal classification of the demand made by the plaintiff, it may dismiss the action, deeming it unfounded in light of the facts presented by the party.19In summary, it may be argued that the prevailing view in the case law of the Supreme Court and in the literature is that if it follows from the facts pleaded in the application that the claim is justified, it should be granted, even if the plaintiff has not indicated the legal basis for the claim or has indicated it erroneously. It is emphasised, however, that in any case, the application of the correct legal basis, irrespective of the position of the claimant, can only be justified by the facts on which the claimant has based his or her demand.20 This does not, therefore, preclude the acceptance of the claimant’s action on the basis of the provisions on unjust enrichment or undue benefit in a situation where the claimant has based his or her claim on an invalid contract. This view is also fully valid when a party is represented by a professional representative. In the case of an erroneous legal qualification of the claim and the facts relied upon to substantiate it, the court is not bound by it and is not entitled to reproduce the mistakes of the legal representative. The principles of iura novit curia and da mihi factum dabo tibi ius are not limited in this respect and do not release the court from the obligation to apply them in cases where the parties are represented by professional attorneys, which the court of second instance should take into account in the event of appealing against the judgment of the court of first instance. In the event that the court changes the legal basis of the claim, a special role is played by the justification of the judgment, in which the court should clearly and exhaustively indicate the reasons for its decision, including, in particular, an explanation as to the legal basis the court selected. Taking care to provide proper justification for its ruling is important not only from the perspective of assessing its accuracy but also for determining whether it was issued with respect to the party’s right to a fair trial. It is worth recalling at this point the position of the Constitutional Court, which has repeatedly expressed the view that the justification of court decisions is a decisive component of the right to a fair trial as a constitutionally protected right of the individual. The court justification has various functions: it enforces self-control of the court, which has to demonstrate that the decision is materially and formally correct and meets the requirements of justice; it documents the arguments in favour of the adopted decision; it is the basis for external control by higher-instance authorities; it serves individual acceptance of the decision; it strengthens the sense of social trust and democratic control over the administration of justice; and it strengthens legal security.213. Notification of Article 1562 of the Code of Civil ProcedureAccording to the position of the Court of Appeal in Warsaw,22 the instruction under Article 1562 of the Code of Civil Procedure belongs to auxiliary actions of the bodies of the proceedings and ensures the proper course of the proceedings. Actions of this kind are not decision-making actions and therefore do not require the issuance of a decision. This does not mean, however, that the instruction provided for in Article 1562 of the Code of Civil Procedure can take place in any form. Due to its content, the instruction is given orally by the court to the parties present at the hearing to warn the parties of the possibility of ruling on a basis other than that indicated by the plaintiff. An order of the court, the operative part of which is to be the transmission of the instruction, does not therefore constitute the proper form of an ancillary act of the court. Due to the legal nature of an instruction, the essence of which is aimed at providing information of a specific wording, an order issued pursuant to Article 1562 of the Code of Civil Procedure is exclusively declaratory in nature with a specific notification content. The notification under Article 1562 of the Code of Civil Procedure may be made by the court on the basis of the assertions made by the claimant and not on the basis of the assertions to be made later as a result of the action of the court. The essence of this provision is that the court, anticipating the possibility of ruling on a different basis, should warn the parties of this if the plaintiff has indicated a legal basis for the claim. However, the scope of examination of the case and the possibility of ruling on a legal basis other than the one indicated by the party may take place only within the limits of examination of the case determined by the demand made and the facts stated. The purpose of Article 1562 of the Code of Civil Procedure is not to collect procedural material (evidence and facts) but for the court to loyally and fairly warn both parties of the possibility of deciding on a different basis of liability within the limits set by Article 321 § 1 of the Code of Civil Procedure.Under Article 1561 CCP, the correct exercise of power by the presiding judge (i. e., in an objective manner and without violating the principle of the balance of the parties in the trial) can contribute to the proper direction of the proceedings. This does not indicate a lack of impartiality: on the contrary, it is intended to be an advantage for the party, which can modify its claims and demands accordingly.23The mere fact of the notification action under Article 1562 of the Code of Civil Procedure, in the absence of circumstances justifying the application of this provision, does not constitute a violation of a rule of procedure that may affect the decision on the merits of the case, unless the court’s procedural actions related to this instruction led to the court’s decision on a different factual basis than the one indicated by the party, and consequently, there was a violation of Art. 321 § 1 of Kodeks Postępowania Cywilnego (the Code of Civil Procedure). The essence of Article 1562 of Kodeks Postępowania Cywilnego (the Code of Civil Procedure) lies in the fact that the court may subsume the plaintiff’s claims under a different regime of civil liability, but it may not change this regime by supplementing the facts relevant for the resolution of the case that were not voiced in the course of the trial but were supplemented by the court in the course of actions taken ex officio. Article 1562 of the Code of Civil Procedure can only be applied if a hearing, a pre-trial hearing or another hearing with the parties has been scheduled. It is clear from Article 1562 in fine that the signalling provided for therein can only be made by the court (the presiding judge) to ‘the parties present at the hearing’. This means that if none of the parties appears at the hearing, Article 1562 cannot be applied.24It has been aptly noted in the literature that Article 1562 of the Code of Civil Procedure cannot be applied if neither of the parties has indicated the legal grounds for their demands or motions. This provision does not contain a general competence to inform the parties about the possible grounds for the court’s decision.25The view has been expressed in the doctrine that Article 1562 is closely linked to Article 1561 of the Code of Civil Procedure, and together they form a procedural construction aimed at ensuring the right to be heard through the prohibition of surprising the basis of the decision.26 Also in the judicature, one can observe a tendency to apply these two provisions together. In the justification of the judgment of the Supreme Court of 28.5.2021, I CSKP 105/21 (Legalis), it was pointed out that if the plaintiff refers extensively to multiple grounds for claims, this should be subject to clarification, ‘taking into account the regulations of Articles 1561 and 1562’ of Code of Civil Procedure.274. Legal consequences of failure to inform a party of a change in the legal basis of a decisionIn the current state of the law, the court should inform the parties of a change in the legal basis of an action.28 However, there is no consensus as to what legal consequences arise from the failure to give the parties such notice. In two judgments, the Supreme Court took the position that if the court decides on a claim on a different legal basis than that indicated by the party, without informing the parties about such a possibility before the hearing is closed, the proceedings are invalid due to the parties being deprived of the possibility of defending their rights, and this also constitutes a violation of the parties’ right to a fair trial.29 A different view in this respect follows from the justification of the Supreme Court’s judgment of 5 July 2013,30 which states that the fact that the contractual legal relationship between the parties was assessed differently by the courts adjudicating the case in no way deprived the defendant of its right to defend itself. When correctly interpreted, a legal norm has an unambiguous meaning. However, bearing in mind that in practice the assessment of legal norms by the parties and the court may lead to different results, a litigant should endeavour to make his or her own assessment of the legal norms applicable to the dispute so that this assessment is as close as possible to the one ultimately adopted by the court. Therefore, a change in the legal qualification of the established facts by the court of second instance can in no way be a basis for concluding that a party has thus been deprived of an instance.31 The view of the invalidity of proceedings caused by the failure to notify the parties of the change in the legal qualification of the claim was also departed from by the Supreme Court in its judgment of 25 June 2015, in which it expressed the view that the right to a fair trial derives from the right to be heard (i. e., the court is to give the parties an opportunity to express their views on the case, and thus also on legal issues). If a party is represented by a professional attorney, the former should perceive on his or her own how the totality of the relevant facts disclosed in the trial can be qualified under acceptable substantive grounds. In such a state of affairs, the failure to warn a party of the possibility of deciding on a different legal basis indicated by the plaintiff does not deprive the party of the possibility of defending himself or herself (Article 379(5) of Kodeks Postępowania Cywilnego (the Code of Civil Procedure)), as by giving the parties a final say, the court gives them an opportunity to express their opinions on all the possible substantive legal provisions applicable in the case.32 In a later decision, the Supreme Court stated that there is no basis for making a general assessment that in every case, the court’s failure to warn a party about the legal recusal of a claim affects its right to defence. This will be determined by the specific circumstances of each case, including its subject matter, the facts indicated, the possible legal qualification of the claim, specific procedural situations and the party’s ability to anticipate such a change. If a party is represented by a professional attorney, the party should perceive for himself or herself how the totality of the relevant facts disclosed in the trial can be qualified under acceptable substantive grounds and express an opinion on them in the final vote. In this state of affairs, the failure to warn a party of a legal basis other than that indicated by the plaintiff does not deprive the party of the possibility of defending himself or herself, unless the legal construction adopted by the court remains outside the limits of the parties’ foreseeability.33 On the other hand, the Supreme Court has recently expressed the view that if the plaintiff has specified the legal basis of his/her claim and only adjusted the argumentation to it, the court’s duty to inform, resulting from Articles 7 and 45(1) of the Constitution, includes warning the parties of the possibility of hearing the case on a different legal basis. This duty constitutes the implementation of the party’s right to foreseeability of the outcome and to allow the court to comprehensively examine the circumstances of the case and serves to guarantee the actual implementation of the right to a fair hearing.34The court’s failure to inform a party of a change in the legal basis of a decision is a procedural default. This does not mean, however, that in a civil trial, it cannot be claimed that a different legal qualification made on the grounds of the judgment in relation to the ground indicated by the plaintiff resulted in an inadequate defence of the defendant, which in turn adversely affected the defendant’s right to a fair trial and, in particular, led to a deprivation of the possibility of defence. However, there should not be an equal sign between the requalification made by the court and the deprivation of the possibility of defending oneself: it should always be considered ad casum.35 The court, when making a legal qualification, may also make a requalification, as such an action does not constitute an adjudication beyond the request. According to Marszałkowska-Krześ, a requalification falls within the discretionary power of the court.36Discussions on the obligation of the court to inform a party of a change in the legal basis of a decision have been concluded by the addition of Article 1562 k.p.c. in the Code of Civil Procedure. This regulation is similar to that found, for example, in Austrian law (§ 182a öZPO) and German law (§ 139(2) ZPO). It imposes an obligation on the court to warn the parties of a possible change in the legal basis of a decision and to give them the opportunity to comment on it. However, it is not possible to derive such far-reaching procedural consequences as nullity of the proceedings or violation of a party’s right to a fair civil trial from the court’s failure to warn the parties of a contemplated change in the legal basis of the decision. Failure to warn a party of a possible change in the legal classification of his or her claim does not violate the provisions of the Code of Civil Procedure in such a way that one could speak here of the invalidity of the proceedings. A party dissatisfied with a judgment rendered by the court of first instance may appeal against it and raise in the appeal allegations concerning a violation of substantive law by the court of first instance. In addition, it should be noted that by changing the legal qualification of an act, the court does not at the same time change the claimant’s demand or the facts invoked in support thereof. The court considers this change usually as a result of the factual findings made, which should be known to the parties as active participants in the proceedings. Moreover, the situation in which the court changes the legal qualification of the claim does not differ in principle from the one in which the parties did not refer to any legal basis, and the court applied it on its own. In both cases, the court decides the case on a legal basis on which the parties have not expressed their opinions. In the latter case, it is clear that the court is not obliged to inform the parties of the legal classification it is considering in the case. Where necessary, at the hearing, the presiding judge may instruct the parties as to the likely outcome of the case in light of the claims and evidence submitted up to that point (Article 1561 of the Code of Civil Procedure). However, this is an instruction on the likely outcome of the case and not on the court’s proposed legal basis for a decision. Apart from that, the statement of the parties concerning the legal qualification of the claim does not bind the court: from the procedural point of view, it constitutes only a statement of knowledge, which may only be perceived in the category of a party’s position, and does not affect its procedural situation. In contrast, this is not the case with the parties’ statements of demand or facts, which usually have procedural significance and produce specific effects. Thus, depriving the parties of the opportunity to comment on claims or facts – as opposed to statements of law – can consequently lead to far-reaching procedural consequences, including the nullity of the proceedings. Therefore, it is always necessary to analyse ad casum the conduct of the court in the course of the proceedings in order