In July 2025, the Supreme Court referred the following legal question to an enlarged panel:
“Does a first-instance court’s determination of a case in closed session in breach of Article 1481 § 3 of the Code of Civil Procedure establish deprivation of the party’s ability to defend its rights under Article 379(5), without further examining whether the breach actually affected its ability to act and whether, despite the procedural infringement, it could take steps to defend its rights?”[1]
A decision is still awaited; no date has been set. This is therefore a good moment to analyse the problem and the practical consequences of each possible answer.
Grounds for invalidity
Article 379(5) makes deprivation of a party’s ability to defend its rights a ground of invalidity. Settled case law requires three elements: the court breached procedural provisions granting the party rights; the breach prevented the party from acting in all or a substantial part of proceedings; and its effects could not be remedied at subsequent hearings before judgment in that instance[2].
The question is whether, if the first element consists of a closed-session determination breaching Article 1481 § 3, the other two should automatically be deemed satisfied. An affirmative answer would facilitate challenges to such judgments and encourage courts to take particular care.
The duty to hear a party at a hearing
Article 1481 § 3 creates an “exception to an exception”. The rule is determination at a hearing[3]. In specified circumstances a closed session is permitted[4]. The exception to that exception prohibits closed-session determination if a party requested to be heard at a hearing in its first pleading or a special provision requires it. There is yet another exception: if the defendant admits the claim, a closed session is possible despite that obligation.
The provision thus confirms that a hearing is the primary method and closed sessions are available only in strictly defined circumstances. It guarantees that a party wishing to present its position orally and directly can do so. The legislature provides no substitute form of defending rights. Scholarship distinguishes this guarantee from alternative ways of hearing parties or others under Article 2262[5]. Only hearing the party at a hearing fulfils its Article 1481 § 3 request. Even if the court sees no need after examining pleadings, it should schedule a hearing and allow the requesting party to speak.
Does breach always deprive the party of its defence?
In practice, failing to hear a party does not always reduce its prospects of a satisfactory outcome. Often it will: facing the court allows doubts about facts and law to be identified and clarified immediately and can persuade the judge. But oral submissions are not always necessary. Beyond admission of the claim, expressly recognised by the legislature, the court may already be convinced by the pleadings of the position of the sole party requesting a hearing.
Can a party be deprived of a defence where the ruling favours it?
Scholarship considers procedural errors’ influence on the outcome irrelevant to invalidity[6]. Thus a closed-session ruling favouring the party whose hearing request was ignored could still breach its defence rights. Yet hearing that party would not change the outcome: if a claimant requested a hearing and won the entire claim without one, speaking could not improve the judgment. The court may already have known this when dispensing with the hearing. Can there be an actual breach of defence guarantees where the court omitted them precisely because they were unnecessary to obtain the requested result?
Consequences of automatic invalidity
If every Article 1481 § 3 breach establishes invalidity, including the situation above, an appeal could lead to invalidity and setting aside within the challenged scope even without a party raising the point. Appellate courts consider invalidity of their own motion[7].
A wholly favourable ruling could therefore be set aside to protect procedural guarantees that were unnecessary for the winning party’s effective protection, as the court already knew when breaching them.
Conclusion
Automatic invalidity for every breach is already often accepted in case law. Endorsement by Supreme Court resolution could help enforce hearing rights. Requiring examination of whether the actual circumstances impaired the defence also has benefits: it avoids rehearing cases where an error had no adverse effect on vindicating rights. Even for a right as significant as being heard at a hearing, the existence of an actual defence-rights breach may be unclear.
[1] Order of 10 July 2025, III CZP 4/25.
[2] Supreme Court orders of 27 March 2025, III CZ 261/24; 26 March 2025, I CSK 4019/24; and 19 March 2025, I CSK 2831/24.
[3] Article 148 § 1 of the Code of Civil Procedure.
[4] Article 1481 § 1.
[5] M. Dziurda, Kodeks postępowania cywilnego. Praktyczny komentarz do nowelizacji z 2023 roku, Warsaw 2023, Article 1481.
[6] T. Szanciło (ed.), Kodeks postępowania cywilnego. Tom I–II. Komentarz, Warsaw 2023, Articles 1–45816.
[7] Articles 378 § 1 and 39813 § 1 of the Code.
