Ius civile vigilantibus scriptum est—the consequences of defective filing in civil proceedings
Every professional lawyer knows that representing a client without thorough knowledge of procedural rules and their practical application can cause irreversible harm. Civil procedure’s substantial formalism results partly from the 2019 amendment. The rules do not always specify consequences precisely; case law has answered many interpretative questions. The Act of 5 August 2025[1] introduces further filing changes and rules whose breach may disadvantage a party. It is therefore worth reviewing the sanctions and whether they can be avoided.
Consequences of filing or serving a copy through the wrong procedure
Under Article 132 § 1 of the Code of Civil Procedure, professional counsel must serve copies of court filings directly on each other. Certain documents, including appeals and counterclaims, are exceptions: they are filed with a copy for the opponent, which the court serves.
From March 2026, this list expands to intervention, amendments to claims, set-off defences, complaints against bailiffs’ acts and objections to distribution plans.
Another change concerns direct service. Currently, counsel must include a statement confirming it in the court filing; omission results in return without an opportunity to correct it. From March 2026, the statement will no longer be required. If in doubt, the court may request proof of service; only failure to provide it will lead to return.
March 2026 also starts a transitional period permitting some documents to be filed through the information portal. From March 2027 this becomes mandatory.
Once mandatory portal filing applies, each document will have one correct method among four:
- traditional filing outside the portal, with a copy for the opponent;
- traditional filing with direct service on opposing counsel;
- portal filing with a copy for the opponent;
- portal filing with direct service on opposing counsel.
Portal or traditional filing—consequences of choosing wrongly
Using the portal when traditional filing is required, or vice versa, will make filing ineffective. Identifying the sole correct route is therefore crucial.
Interestingly, the one-correct-method principle does not apply to direct service on opposing counsel. Portal service has the same effect as post, regardless of how the court document itself was filed.
New Article 132 § 15 expressly allows portal service even where the court filing must be traditional. The converse—postal service of a portal filing—is not expressly addressed. In theory it is consistent with the wording. Article 132 § 1 requires direct service and, on request, proof of service or posting. Article 132 § 14 merely says that obtaining confirmation of transmission to the opponent when filing through the portal fulfils direct-service duties. The wording does not compel portal service of portal filings.
Consequences of using the wrong service procedure
Generally, counsel must serve copies directly. Failure leads to return. Currently, omission of the service statement triggers this; from March 2026, failure to provide requested proof of posting or service will do so. In any event, non-service eventually makes filing ineffective through return.
What if counsel serves directly when the document should instead be filed with a copy for court service?
The court identifies a formal defect: Article 128 § 1 requires the appropriate number of copies. If a document excluded from direct service lacks its copy, it should be treated as defective.
Since 10 September 2025, a defective document filed by professional counsel is no longer returned immediately. The court first allows one week to correct it. Only failure then leads to return.
What if the court misses the error?
This occurred with claim amendments, whose status was unclear. Although until 1 March 2026 the statute does not expressly exclude them from direct service, case law unequivocally requires service by the court in every case. Counsel therefore file amendments with a copy, the only accepted route.
Where counsel nevertheless served an amendment directly and the court failed to return the defective filing, doubts arose about the consequences.
The Supreme Court considers adverse consequences possible but not inevitable. For an increased claim, the amendment is not ineffective and the judgment is not defective as exceeding the relief sought merely for this reason.
Incorrect service can, however, invalidate proceedings. This is not automatic: invalidity must arise from restricting the opponent’s ability to defend its rights. If the opponent could read and respond despite defective service, there is no basis for invalidity[2].
[1] Act of 5 August 2025 amending the Code of Civil Procedure, the Civil Code and certain other Acts (Journal of Laws, item 1172).
[2] Supreme Court order of 30 January 2025, I CSK 577/24; judgment of 22 February 2019, IV CSK 121/18, OSNC-ZD 2020, no. 2, item 30.
