Ius civile vigilantibus scriptum est? Part 2—remedying formal defects
Although attentiveness that prevents defects is the ideal antidote to difficulties in remedying them, even professional lawyers can make drafting mistakes. Fortunately, many formal defects can be corrected, but accuracy at this stage matters even more.
Changes to the procedure for remedying defects by professional counsel
Until recently, the Code of Civil Procedure prescribed different rules for defective pleadings filed by professional counsel and by unrepresented parties. Depending on who filed, the court took different procedural steps, although the ultimate effects were similar.
A defective pleading filed by professional counsel was returned without a prior request to remedy it[1]. Counsel could refile a defect-free version within one week, with effect from the original filing date. The wording suggested that even a defect in one element, such as a missing attachment, required the whole document and all attachments to be refiled.
For documents filed directly by a party, the court instead called for defects to be remedied within a week and returned the document only if that period expired without compliance[2].
Practically, the difference was not substantial. Both mechanisms provided one week to remedy defects, with irreversible adverse effects only after it expired unsuccessfully. The distinction was essentially the timing and form of the court’s response.
The amendment of 5 August 2025[3] unified these rules. Both professional counsel and unrepresented parties are now called to remedy defects within a week, failing which the document is returned. The new rules apply to documents filed from 10 September 2025.
Can remedying defects after the one-week deadline be effective?
An incorrectly assembled attachment or omission of the claim’s due date is therefore still a relatively minor problem. Professional counsel knows that a missed deadline—procedural, a substantive limitation period or simply court-set—is far more serious. Although reinstatement of a filing deadline is theoretically possible, in practice it approaches a myth. Courts expect not only discipline but foresight and resourcefulness capable of overcoming even hard-to-predict obstacles[4].
Is there any prospect of reinstatement if counsel fails to remedy defects in time through no fault of their own?
Three competing Supreme Court approaches have developed regarding reinstatement of the deadline for remedying formal defects in an appeal. The first accepts reinstatement[5]. The second also allows it, but only until a decision consequent on the missed deadline is issued[6]. The third considers such an application inadmissible because correcting defects is not an independent procedural act[7]. Filing the document, rather than remedying it, is the independent act.
The Supreme Court recently adopted the last approach in its order of 22 January 2025, I CSK 516/24. It held that missing the deadline to correct defects cannot be cured by seeking reinstatement of that deadline. Instead, a potential, at least theoretical, remedy would be reinstatement of the deadline for filing the document. A timely document with an unremedied formal defect has no procedural effect, putting the party essentially in the same position as if it had never filed.
Once the document has produced no effect, an application to reinstate the deadline for correcting it has no subject matter. Even if granted, it would make no sense to correct a document treated as non-existent.
The Court therefore considered the only formally admissible route to effective filing to be reinstatement of the filing deadline, rather than the deadline to correct a document already returned or rejected.
However, its discussion of reinstating the filing deadline primarily concerned assessing admissibility of reinstatement for correcting defects. The alternative of refiling with an application for reinstatement was raised somewhat incidentally and was principally theoretical.
In practice, it may be ineffective. Courts reinstate deadlines only exceptionally and scrutinise applications even more strictly where professional counsel should have acted. A persuasive justification would be particularly difficult: counsel would need to show that both filing a defective document and failing to correct it in time occurred without fault.
What are the consequences of paying the wrong fee?
Counsel filing a fee-bearing document can make three mistakes: paying too much, too little or nothing.
Overpayment has no adverse procedural consequences. Courts must refund excess fees of their own motion[8]. If they do not, prompt action to enforce repayment is important; otherwise the claim becomes time-barred after three years[9].
Non-payment or underpayment requires an even faster response. Without the required fee, the court takes no action on the document[10]. Its further response may differ according to how the value of the dispute or appeal was determined.
Supreme Court case law[11] indicates that where the appeal value is correctly stated but no fee, or too low a fee relative to that value, is paid, a document filed by professional counsel is subject to rejection, with the possibility of supplementing the fee within one week of service of the return order.
If the fee was paid correctly against the stated appeal value, but the court finds that value incorrect and consequently the fee insufficient, it determines the correct value and calls on the appellant to pay the balance.
Consequences of refusal of an application for exemption from court costs
Particular care is needed where professional counsel applies for exemption and the court refuses it. For an unrepresented party, refusal would trigger a request to pay the missing fee. For a party represented by professional counsel, the court does not issue such a request.
The one-week payment period starts when the refusal order is pronounced or served. If the first-instance court ruled and an interlocutory appeal followed, it runs from pronouncement or service of the order dismissing that appeal[12].
Thus, non-payment based on an incorrect assumption that exemption would be granted can be remedied, but counsel must be particularly vigilant in establishing when the payment period begins.
[1] Article 1301a of the Code of Civil Procedure before 10 September 2025.
[2] Article 130 of the Code.
[3] Act of 5 August 2025 amending the Code of Civil Procedure, the Civil Code and certain other Acts (Journal of Laws, item 1172).
[4] For more detail: M. Jędrzejewska, K. Weitz in T. Ereciński (ed.), Kodeks postępowania cywilnego. Komentarz. Tom I. Postępowanie rozpoznawcze, 5th ed., Warsaw 2016, Article 168.
[5] Supreme Court order of 10 November 2006, I CZ 61/06.
[6] Supreme Court order of 22 February 2006, III CZ 4/06.
[7] Supreme Court order of 22 January 2025, I CSK 516/24.
[8] Article 80 of the Act on court costs in civil cases.
[9] Article 81 of that Act.
[10] Article 1262 § 1 of the Code of Civil Procedure.
[11] Supreme Court order of 14 May 2021, III CZ 13/21.
[12] Article 112 of the Act on court costs in civil cases and Supreme Court resolution of 26 April 2022, III CZP 82/22, OSNC-ZD 2023, no. 2, item 18.
