After a judgment is set aside on interlocutory appeal to the Supreme Court, the case can be reconsidered by the very same judges
The panel of judges must be changed after a ruling is overturned and remanded for reconsideration only in the case of a ruling on the merits of the specific dispute. This is not the case for proceedings commenced by an interlocutory appeal to the Supreme Court on procedural issues.
Supreme Court of Poland resolution of 26 November 2014, Case III CZP 80/14
Changing the panel of judges after a judgment is set aside by a higher court and the case is remanded for reconsideration respects the principle of impartiality as well as judicial independence. It thus furthers the principle of the parties’ complete confidence in the courts and the rulings they issue, which also translates into application of the constitutional principle of the rule of law. Violation of provisions concerning the makeup of the panel of judges is also grounds for the invalidity of the proceeding (Civil Procedure Code Art. 379(4)).
The regulations on appeal and cassation proceedings require that a case be reconsidered by a different set of judges. But under Civil Procedure Code Art. 3941 §3, proceedings before the Supreme Court of Poland pursuant to an interlocutory appeal are governed by the regulations concerning interlocutory appeals before the court of second instance and cassation proceedings. One such proceeding is the one governed by Art. 3941 §11, under which an interlocutory appeal to the Supreme Court is available if the court of second instance overturns the judgment of the court of first instance and remands the case for reconsideration.
Can the case be reheard by the same judges?
The legal issue presented to the Supreme Court involved the composition of the court of second instance which will reconsider the case after the Supreme Court overturns a judgment of the court of first instance and remands the case for reconsideration pursuant to an interlocutory appeal provided for in Civil Procedure Code Art. 3941 §11.
Considering an appeal by the defendant in a case seeking payment of money, the court of second instance had doubts about the membership of the panel and raised the following issue with the Supreme Court: “If the Supreme Court overturns a judgment of the court of second instance which overturned the judgment of the court of first instance, may the court of second instance to which the case was remanded for reconsideration hear the case in the same panel?”
Yes if the case does not involve the merits
The answer to the question from the Supreme Court was affirmative.
In justifying its resolution, the Supreme Court wrote: “A ruling by the Supreme Court upholding an interlocutory appeal provided for in Civil Procedure Code Art. 3941 §11 is solely of a procedural nature and does not contain any determination of the merits of the disputed legal relationship, but only decides on the fate of the judgment appealed against, which ceases to exist in a legal sense. The situation arises as if the ruling of the court of second instance appealed against had never been issued at all. Vacating the ruling of the court of second instance means that this court must again exercise its jurisdiction in connection with the necessity to consider the appeal against the ruling of the court of first instance. Given the scope of review by the Supreme Court, however, there is no risk in this instance of violating the impartiality of the panel deciding the case.”
Citing an established line of case law, the Supreme Court also indicated that the composition of the court is determined solely by the subject of the case being heard, and not by the type of ruling that is issued (Supreme Court of Poland resolutions of 5 November 1973, Case III CZP 67/73, OSNCP 1974 No. 7–8 item 126, and of 5 February 2004, Case III CZP 113/03, OSNC 2005 No. 5 item 75). Moreover, the review conducted pursuant to filing of an interlocutory appeal indicated in Civil Procedure Code Art. 3941 §11 is only formal in nature—it is focused on the grounds for vacating the judgment of the court of first instance and cannot intrude into the jurisdiction over the merits by the court of second instance which is considering the appeal.
The Supreme Court also pointed out that by requiring that specific regulations concerning cassation proceedings be applied as relevant, the Parliament expressly limited the scope of application of Civil Procedure Code Art. 39815 to the first sentence of §1 of that article, at the same time excluding the rule set forth in §2, which provides that if the case is remanded for reconsideration it will be heard by a different panel of judges.
For these reasons, the Supreme Court of Poland adopted the following resolution: “If the Supreme Court overturns the judgment of the court of second instance pursuant to an interlocutory appeal provided for in Civil Procedure Code Art. 3941 § 11 and remands the case for reconsideration, the case may be heard by the same panel of the court of second instance.”
Oliwia Lewandowska, Dispute Resolution & Arbitration Practice, Wardyński & Partners