Service of a pleading increasing a claim
In its order of 30 January 2025, I CSK 577/24, the Supreme Court confirmed that defective service of an increased claim need not invalidate a judgment granting it. The cassation appellant alleged invalidity because the court supposedly awarded beyond the relief sought, depriving the party of a defence.
How an increased claim must be served
The appellant relied on claimant’s counsel serving the amendment directly on defence counsel under Article 132 § 1[1]. Generally, the court serves documents under Article 131 § 1[2]. Article 132 creates direct service between professional representatives for documents filed during proceedings, except those in § 11. The list did not mention claim amendments but included other documents with special procedural effects and formal requirements.
Since an increased claim resembles a statement of claim, doubts arose. A seven-judge Supreme Court resolution held that it is not subject to direct service[3]. It must meet claim requirements and, despite procedural continuity, acts as a claim for the additional relief. It produces Article 192 lis pendens effects and sometimes substantive effects. Prior court scrutiny ensures effectiveness and jurisdiction, while official service assures the defendant’s opportunity to read and helps establish the service date.
Effects of defective service
Direct service in this case was unquestionably defective. But what followed? Refusing cassation review, the Court rejected the argument that bypassing official service meant exceeding the claim and invalidity. Earlier case law consistently separates effective amendment from service. Article 321 § 1’s limits on relief and Article 192’s service effects are distinct[4].
Article 321 permits judgment only on matters claimed. A matter becomes claimed when communicated to the court, not when properly served. Service changes legal relations under Article 192: procedurally, preventing new proceedings between the same parties for the same claim and enabling a counterclaim.
Depriving a party of its defence
Bypassing official service does not establish invalidity, consistently with earlier decisions[5]. The appellant invoked Article 379(5), requiring deprivation of the ability to defend rights. Here, the defendant could read the amendment and nothing prevented a response. Indeed, the first-instance court ordered a response and the defendant filed one. Defective form therefore did not prevent defence.
The Court did not rule out invalidity from improper service. It said it is not automatic. Like other procedural breaches, it may or may not impair defence. A challenge must prove not only breach of a protective procedure but that the risk actually materialised.
Awarding beyond the claim
Even accepting the appellant’s theory, exceeding relief would not automatically invalidate proceedings. Article 379 conditions must still be met[6]. For invalidity, it therefore does not matter whether amendment takes effect on filing or proper service. Even if only on service, and defective service meant an excessive award, actual deprivation of defence must be proved. Without it there is no invalidity. This does not make the judgment unchallengeable: the relevant complaint would concern unlawfulness under Article 4241 § 1, rather than invalidity[7].
Conclusion
The order emphasises examining procedural defects’ actual effects. It does not reject official service for important documents. Procedures guarantee opportunities to exercise rights, but a breach may leave those opportunities intact. This distinction particularly matters because excluding claim increases from direct service follows purposive interpretation, not literal wording, as endorsed by the seven-judge resolution. Potential escape from adverse consequences does not remove the rule. Counsel should comply: only procedural compliance makes effectiveness predictable.
[1] Article 132 § 1 requires advocates, legal advisers, patent attorneys and the General Counsel to the Republic of Poland to serve pleading copies and attachments directly. Court filings must state that a copy was served or posted through an Article 165 § 2 operator; omission leads to return without a request to correct.
[2] Article 131 § 1 provides service through postal operators under the Postal Law of 23 November 2012 (Journal of Laws 2023, item 1640; 2024, items 467 and 1222), court employees or court service. Bailiff service is also possible under the Act of 22 March 2018 on court bailiffs (Journal of Laws 2024, item 1458).
[3] Seven-judge resolution of 11 December 2018, III CZP 31/18, OSNC 2019, no. 4, item 35.
[4] Supreme Court orders of 23 July 2020, I CZ 27/20, and 27 February 2019, I CSK 415/18.
[5] Supreme Court judgments of 15 February 2018, IV CSK 713/16, OSNC 2019, no. 5, item 58; 22 February 2019, IV CSK 121/18, OSNC-ZD 2020, no. 2, item 30; the source also repeats the first citation.
[6] Supreme Court judgment of 26 March 2013, II PK 216/12, OSNP 2014, no. 1, item 5.
[7] Supreme Court judgment of 22 March 2023, II NSNc 41/23.
