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Coping with Covid-19 - the Business Response

Courts: the new normal

By Dr Michał Jabłoński, advocate, counsel in Litigation & Dispute Resolution Department, Dentons
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Many of us, lawyers and clients alike, are wondering what life will look like after the lockdown is lifted. It is the biggest spanner in the works for the business world in our generation. Poland, in common with many countries across Europe, Asia and North America, has brought in special legislative and administrative measures to cope with the crisis. Many state activities have been frozen and this has impacted the judiciary too.

Everyone expects the process of gradually easing the lockdown measures to start soon and to continue for weeks if not months. No one knows if the pandemic will peter out slowly or come back with a vengeance. But a return to the situation before the lockdown is probably just a pipe dream. A stop-start, brake-and-release policy is being mooted by many scientists and some politicians, at least until some sort of workable vaccine or efficacious treatment is developed. Until the danger passes, we have to be prepared for another two or three lockdowns and longer periods of watered-down restrictions. This is the ‘new normal’. The same applies to the workings of the courts and activities of lawyers representing clients in court.

Polish courts have not completely shut down, but they are working at minimal levels. Some procedural deadlines have been suspended, nearly all court hearings have been postponed (excluding closed sessions and some urgent cases). Communication with courts is also limited – courts are not sending documents to parties (but practices vary). Judgments are only announced – not issued – except for those issued behind closed doors. Generally, there are no obstacles to initiating new court actions, but  prospects for obtaining a speedy outcome are remote. It’s even tough obtaining interim measures these days – by their very nature, they should be issued quickly. As a result, there are currently no effective court remedies available for any business entering into dispute.

Pandemics do not make disputes go away. If anything, the current situation – including the government’s restrictions on businesses and consumers – has triggered new problems and conflicts. Many of them will likely follow the usual path to court. You can just imagine the scenes of court overload in the weeks that will follow the end of the current lockdown – the need for an efficient judicial system will be crushing and desperate. The question is whether the Polish courts are ready and able to deliver justice in the ‘new normality’.

First off: Don’t delay! If your business has a claim that needs to go to court, don’t wait for the end of the lockdown. The ‘unfreezing’ of the courts will release a tsunami of court cases. Due to the disruption and pent-up demand, the courts will likely lack capacity to handle all new and outstanding cases in a timely manner. Thus, as the schedule of court hearings generally depends on the order in which cases are submitted to court, you should file your claims as soon as possible. If you get in line faster, you’ll get an earlier court date and, all things being equal, quicker justice.

Another issue is whether the courts will carry on ‘business as usual’ in the new normal period. Rumour has it that—until all restrictions come to an end—court hearings could be organised on a remote, video-link basis. This means that the judge, plaintiff, defendant and their attorneys would connect by internet and none of them (perhaps except the judge) would be present at court. Communication between court and parties would also be done electronically. It sounds promising, as it opens up the possibility of dragging the Polish court system into the digital era. A welcome ray of sunshine amid the Covid gloom. But there’s always the gaping chasm between theory and practice. The Polish judicial system is taking its time over the digital transformation. Despite declarations by successive governments (and even legislation creating a framework for digitalisation of court procedures) e-litigation literally exists only on paper. One exception – the e-court – is good for mass debt-claims by telecom, gas and electricity providers, among others. There is no platform or dedicated software available that is fit for purpose. The Polish state is hardly likely to get dedicated products of sufficient quality in a short time-horizon.

So alternative solutions have to be found for the new normal. The government might just be considering enabling, in court proceedings, the use of apps which are available for businesses and law firms. However, two important issues need to be discussed and resolved first. The most important is protecting the secrecy of proceedings (especially in cases with restricted transparency such as divorce cases) and the personal rights of the parties, including the right to privacy.

Although in the Polish legal system court hearings are generally open to the public, moving to remote, audiovisual transmission of court hearing is very much a Brave New World. It would probably be technically possible for a party to the proceedings to livestream the whole court hearing to the public. This certainly has enormous pros and cons! It could attract public attention, sometimes perhaps prurient. It could be good in cases of intense public interest. On the other hand, with so many examples of controversial practices in social media (e.g. fake/slanted news and hate speech), livestreaming audiovisual court hearings could feed internet trolls and provide oxygen for hate speech. Remote hearings might also undermine the practical authority of the judge and downgrade the effectiveness of disciplinary measures. Another practical issue is the technical capacity of each party to use and abuse the new instruments. Like elsewhere, people in Poland have varying levels of internet quality, ranging from excellent to poor or non-existent. Connecting to audiovisual conferences might be problematic and some might even feign technical problems for tactical reasons. In such cases, public authorities (perhaps local councils) might consider providing free or cheap access to good-quality internet connections for such purposes on their premises.

One thing is sure: we are living in interesting times. Long-term disruption of the judicial system is unquestionably dangerous for business and society at large, posing a serious risk to fundamental wealth-creation processes in the economy. There is no doubt that ‘justice delayed is justice denied’. Society is looking to the government to lead us through the period of the new normal and to unfreeze the judiciary and the economy as a whole, without jeopardising public safety.

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