Commercial courts at the time of pandemic

by Kamil Twardowski

6 May 2021

The crisis caused by the coronavirus pandemic has affected businesses locally and globally. Has the pandemic affected also commercial courts and the litigation time? How did the courts react to the lockdown?

Commercial courts during pandemic

Commercial disputes have ranked at the top of the disreputable ranking of the longest litigation cases and have stayed there for a long time. There are many reasons for this, such as the complexity and intricacies of commercial disputes, understaffed courts, the need for expert witnesses, problems with document translation. The reform of the Code of Civil Procedure (CCP) in September 2020, which was supposed to give the courts tools to speed up case processing, have not fared well in all courts because of, among other things, the very COVID-19.

After the first COVID-related regulations had been published, each court implemented its own rules and limitations. They included both technical issues (e.g. access to the court building) – decided by individual court presidents, as well as adjudication – which was up to the individual judges.

Hearing dates in the period from March to May 2020 were postponed even by months. Another thing standing in the way of smooth processing is the human factor – witnesses who fail to show up in court invoking positive COVID-test results and quarantine or fear of infection.

Online hearings and other forms of organising court work

It was not until mid-May 2020 when the lawmakers added national legal basis for online hearings to the so-called COVID Act (Act of 2 March 2020 on Specific Steps to Prevent and Combat COVID-19, Other Contagious Diseases and the Crises They Cause).

However, the regulations carried a certain risk, namely the limitation of the citizens’ right to court, by allowing judges to issue default judgments during in camera hearings and second-instance judgments.

Note that the official legal basis did not automatically make all courts switch to online hearings. Different technical resources and IT skills of judges and court clerks stood in the way.

The Commercial Division of the District Court in Łódź was a pioneer of online hearings in commercial cases using MS Teams. In the meantime, courts have finally got dedicated software named JITSI and SCOPIA.

In hindsight, the online hearings as such work well. In many cases they have led to swift and efficient case processing. Sometimes, however, it becomes troublesome, mainly for technical reasons. The hearing participants do not always have access to a fast enough Internet connection or adequate hardware.

To deal with these problems, courts publish on their websites instructions on how to install the programs for online hearings and the best practices of participating in them.

Since attendance via a teleconference is not mandatory, i.e. you can as well appear in court in person, there are also hybrid hearings which some parties attend in court and some – remotely.

Remote commercial proceedings

The legislation allowing online hearings in commercial cases does not translate directly into court efficiency.
On the one hand, the litigation time has slowed down. On the other hand, some of the court activities, e.g. witness hearing, have become easier. Expert witnesses based in scientific centres located hundreds of kilometres away from the court do not have to waste time on getting to the court, which makes them more available whenever a procedure requires an expert witness.

Practice shows also that with the new tools, actions which were so far complicated and time-consuming may be completed in a short time. It turns out that with proper planning a court can within one week: hear the plaintiff and other parties to the proceedings, organise witness hearing, hear expert witnesses, set the deadline for objections to the expert’s opinion and issue a ruling which concludes the case in the first instance.

Apart from the speed of such hearings, such a concentration of proceedings helps to fully focus on the case and be up to date with all developments. The old, hardly perfect practice, showed that whenever months or even a year passed between one court action and another, the whole case had to be recalled and the case files reviewed anew.

Conclusions for the future

Most certainly some of the tools and court procedures emerging from the pandemic are here to stay. Hybrid and online hearings will be a new normal. Let us hope that all such hearings run smoothly, effectively and quickly.