POLAND Law and Practice Contributed by: Rafał Waszkiewicz and Bartosz Pyzder, Sołtysiński Kawecki & Szlęzak
meet it is not considered a breach of procedure. There are no “out-of-hours” judges or similar who would consider the motion for an interim injunction outside of the normal court hours in Poland. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Injunctive proceedings are conducted ex parte, with- out notice to the respondent. If, however, the respond- ent obtains information regarding the motion for an interim injunction against it, it can file a pleading with its position, but the court is not obligated to wait for the respondent’s position. In disputes concerning intellectual property rights, the court should hear the respondent unless it is necessary to immediately issue a ruling on the application. 6.4 Liability for Damages for the Applicant Polish law provides for the liability of the applicant for the enforcement of the interim injunction. This also applies to injunctions that are not enforceable (eg, the prohibition of taking some action). The prerequisites for liability include: • proving the damage; • proving the connection between the execution of the security and the damage; and • one of the following events connected to the obtained security of claim: (a) the dismissal or rejection of the claim or appli- cation; (b) the discontinuance of proceedings; (c) the return of the claim or application; (d) the failure to lodge the letter initiating proceed- ings regarding the secured claims within the prescribed time limit (this applies when the in- junctive relief was issued before initiating main proceedings); or (e) the withdrawal of the claim or application. A claim against the applicant expires if it is not pur- sued within one year from the day of the claim arising. 6.5 Respondent’s Worldwide Assets and Injunctive Relief As a rule, Polish courts grant injunctive relief against assets located in Poland. With regard to funds in an account held in the EU, it is possible to obtain a Euro-
pean preservation order. Exclusive national jurisdiction covers matters of rights in rem in immovable property and the possession of immovable property. In principle, injunctive relief may be granted against the respondent’s worldwide assets. 6.6 Third Parties and Injunctive Relief Injunctive relief may not be obtained against third par- ties. 6.7 Consequences of a Respondent’s Non- Compliance The consequences if a respondent does not comply with the terms of an injunction differ and depend on the method of securing a claim. Injunctions may be enforceable, such as if a bank account is seized and the respondent is then required to comply with the injunction. In the case of a substitutable action, the court will give the creditor authority to perform the action at the debtor’s expense. In the case of an unsubstitutable action, the court may impose a fine on the debtor or order the payment of a specified sum of money to the creditor. Proceedings before Polish courts do not contain a “pre-trial procedure” or a “trial” as known in some common law legal systems. As a rule, in the first part of the case, the parties file preparatory pleadings (a statement of claim, a statement of defence, etc), and then there are hearings in which oral arguments are presented and witnesses or expert witnesses are examined (which, to some extent, is similar to a trial). As regards the parties’ argumentation (particularly legal argumentation), the court places the greatest emphasis on the parties’ pleadings. The court deter- mines the facts based on the evidence presented at the hearing and the documents attached to the pre- paratory pleadings. In some cases, the court may 7. Trials and Hearings 7.1 Trial Proceedings
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