Content Listing

Summary

Introduction

Restrictions on the admissibility of evidence are closely connected with the establishment of the truth in civil procedure. It is obvious that restrictions and especially the exclusion of evidence would hinder the quest for the truth in certain cases. Restrictions are also closely related to the principle of procedural justice. Procedural justice presupposes that just results should be obtained through a just procedure – fairness of procedure. To be able to talk about fairness, procedure should be oriented towards correctness. However, is it possible to have correctness in the procedure with evidence obtained illegally or in violation of human rights?

The equality principle generally favours the admissibility of all evidence relevant to the trial. By excluding a piece of relevant evidence categorised as inadmissible, evidence law places the risk of error associated with this evidence on its proponent, whose opponent consequently acquires an immunity from that risk. This one-sided outcome is generally inferior to a system of free proof. Arguably, a free-proof system apportions the risk of error more equitably by allowing factfinders to consider all relevant evidence and determine its probative value on a case-by-case basis. This system avoids any systematic skewing of the risk of error. Fact-finding errors are thus entirely accidental in their occurrence. Free proof, however, only guarantees rudimentary equality in risk allocation and is still far from guaranteeing equality in the final apportionment of the risk of error. Application of this system in civil litigation only installs primary equality and requires corrective equality mechanisms. These mechanisms render inadmissible any evidence (or impose other restrictions on evidence) that creates inequality between the litigating parties by imposing a non-reciprocal – and, therefore, inequitable – risk of error on the opponent.

These corrective mechanisms can include evidentiary privileges, restricting the means of evidence, restricting methods of taking evidence, prohibiting specific evidence or a general exclusion of evidence. The problem has cross-border dimensions – the question of whether a court of another country will accept evidence taken in the first country, for example in a manner that is considered to be problematic. Another problem is the feasibility of taking evidence in another country in case of evidence that is considered illegal according to the lex fori. These problems are also problematic in the enforcement stage, e.g. as regards enforceability of the judgment in another country.

Summary

Introduction

In this contribution I present selected issues regarding the preclusion of untimely allegations and evidence in civil proceedings. In other words, this contribution deals with the doctrine of concentration of procedural material, as it is called in Poland. In the background there are inherent internal tensions between two key values of adjudication, namely, efficiency, on the one hand, and the reliability of the factual inquiry, on the other. I will carry out my presentation by mixing a healthy concoction of doctrine, law and practical observations. One caveat is in order, however. Given the limited space and the sheer size of the subject of inquiry, some readers may find this article a bit general. Although a side effect, this should be in fact beneficial for a foreign reader, as a meticulous discussion might have been too abstract and too detailed for comparative purposes.

I start with a brief characterization of the Polish system of procedure, including the still powerful dogma of truth-seeking. After a short historical comment on the principle of concentration, I move to the recent ‘ugly past’ and ‘the bright future’ ahead in light of recent amendments to the Polish Code of Civil Procedure (CCP). I conclude with some thoughts on the new law.

The Polish Model of Procedure: A View from Above

I would like to start by making two points.

First, although it does not perfectly match Damaška's model, I would argue that the Polish system is a type of ‘social’ or ‘policy-implementing’ model of procedure.

Theoretically, this model has the following characteristics: (1) as a part of its function, the active state has adopted a certain idea of how a ‘good society’ should work; (2) a civil dispute is a social problem, because it disrupts the orderly workings of society; (3) so, the state needs to be actively involved in adjudication, should it be invoked; (4) accordingly, adjudication is about more than merely resolving civil disputes; it is also about that idea of social order; (5) thus, the lawmaker infuses procedural norms with substantive policies; (6) because otherwise these policies will remain on paper and the primary goal of civil proceedings is to make correct factual findings, which is a conditio sine qua non for giving a proper judgment.

Summary

Introduction

When it comes to assessing the administration of justice it is likely that there is a consensus about one thing: the justice system needs to be efficient. A higher investment of time and money than strictly necessary is disadvantageous for citizens, the government and economic interests. Thus the complaints that adjudication takes too long.

Efficiency is largely dependent on the way the administration of justice is organized; it depends primarily on the procedural model. Researchers often look at the time proceedings take, for a short procedure is beyond doubt an efficient one. However, this is not enough: a judge deciding a case by rolling the dice will hardly need any time for his decision, but the result is a judgment of meagre quality. The best way to assess in an objective manner whether (an aspect of) a justice system is efficient is therefore to look for factors that influence the efficiency of proceedings and assess their working. In that way, the question whether quality is suffering under the desire to have an efficient procedure can be taken into account.

This empirical study is about witness examinations in Dutch civil procedure in commercial cases. Examining witnesses is part of giving evidence or - seen from a more inquisitorial point of view - finding the truth. It is therefore a crucial part of civil procedure. Dutch civil procedure is only partly adversarial and is strongly modelled towards efficiency by giving the court extensive powers to determine the course of the proceedings. A procedural model such as this, aiming at a quick judgment, harbours the risk of inaccuracy. This is a real risk in Dutch procedure since, especially compared with common law countries, there is not that much room left for the parties during witness examination. Observing witness examinations in Dutch courts can be useful in determining whether overzealousness plays too big a role.

This contribution will start with a description of civil procedure in commercial cases. Next, the four indicators that were used to assess witness examinations in Dutch courts will be introduced. What follows is a brief description of the research design, the research method and the actual research, with mention of some of the difficulties that had to be overcome in order to gain access to public hearings.

Summary

European Union – Relationships to Third Countries within the Hague Conference

On 18 March 1970 the contracting parties adopted the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (hereinafter the ‘Hague Convention’). In the context of the Convention, the present contribution will focus on the relationships and roles of the European Union and its Member States related to the Convention's implementation. The Hague Convention was negotiated during the Hague Conference. A majority of Member States of the European Union are currently among its parties. The EU itself is not a party to the Convention for two reasons. At the time when the Convention was negotiated the European Economic Community lacked the power to regulate aspects of private international law. Furthermore, based on the Hague Convention itself, an international organisation such as the EEC could not be among the contracting parties and the Convention also excluded any later accession by an internal organisation.

Since the 1970s there has been a significant shift in the division of competences between the Member States and the European Union in matters relating to aspects of private international law, as these aspects have become part of the EU's agenda. Obviously, this internal shift of competence has had an effect on the EU's relationships to third countries and international organisations. As a result, the EU was ultimately able to become a member of the Hague Conference. It took advantage of this opportunity and became actively involved in the Conference's activities.

The parallel membership of the European Union and Member States in the Hague Conference also brought about an adverse consequence for third countries in terms of uncertainty as to the actual scope of the existing competences of the EU entrusted to it by the Member States in the area of private international law. Indeed, it is important to define the boundaries of competence in terms of both practical implementation of the treaties negotiated at the Conference and potential liability for their breach under international law. It is important for third countries to know who will implement a treaty and against whom they should exercise any claims based on such liability.

Summary

Introduction

The word ‘procedure’ inherently means ‘going forward’. Viewed as such, civil procedure not only aims at moving forward the dispute between the parties up to the point of its eventual determination by a court, but also aims at reflecting the evolution (i.e. change) of society and its needs. Since all legal systems are closely linked to the historical, cultural, socio-economic and political milieu in which they have developed and find application, the degree of the powers of the judge and the powers of the parties regarding the taking of evidence in a given system must necessarily depend upon a variety of factors, juridical and non-juridical, that determine its character. With regard to this, as far back as 1975 Jolowicz stated the following:

The essential question, to which each country must work out its own answer, concerns the extent to which the powers of the court can be increased without thereby sacrificing other values which are held to be vital to the due administration of civil justice.

In this contribution, the focus will be directed at the South African adversarial system of civil procedure which owes its origin to that of England. It has, however, materially steered an independent course in its development since its implementation by the English in 1828.

In terms of Sec. 166 of the Constitution of the Republic of South Africa, 1996, the courts in South Africa consist of:

Summary

General

As is generally known, there are major differences between the fact-finding processes of arbitration and litigation proceedings. This is not only true from a civil law, but also from a common law perspective: Today's practice with respect to the taking of evidence in arbitration proceedings results from a combination of approaches of lawyers with different backgrounds, in particular, from lawyers from civil and common law jurisdictions. In particular, this combination of approaches is reflected in the International Bar Association Rules on the Taking of Evidence in International Arbitration. Different from many other ‘principles’, ‘rules’ etc. which only play a role in the discussion of academic or practitioners’ conferences, these rules have gained significant acceptance in arbitration practice and serve as guideline for the decision of fact-finding issues in many arbitration proceedings all over the world today.

The reason for asking about what litigation can learn from arbitration with respect to evidence-taking is obvious. Arbitration is market-made and, therefore, concepts developed in arbitration practice and accepted by parties and arbitration practitioners might be effective and user-friendly. Therefore, one might argue that arbitration could be a laboratory for best practices in civil procedure not only, but also when it comes to evidence. I do not suggest that, therefore, arbitration is superior to litigation. As is generally known, not all results of market-driven processes are in the best interests of all stakeholders. This contribution, however, is not about criticizing arbitration practice where there might be shortcomings, but simply asks which lessons can be learnt from arbitration with respect to evidencetaking.

My approach is, of course, based on my personal experience resulting from my academic and practical work in civil procedure in the German speaking countries on the one hand and in international commercial arbitration on the other. Therefore, some of the aspects which I will address where litigation might learn lessons from arbitration are based on my ‘Germanic’ litigation experience and might, therefore, not apply to the civil procedure of other jurisdictions to the same extent. Moreover, I would like to clarify that user-friendliness and efficiency, of course, are not necessarily the only relevant factors for identifying the best approaches in the field of evidence – it is just one very important perspective, and it is the one perspective which I will focus on in the following.

Summary

Role of Principles in Civil Proceedings

Undoubtedly, the development of IT has an impact on every aspect of civil proceedings. This was clearly formulated at the 2007 World Congress of the International Association of Procedural Law: ‘[The] new technologies have the capacity to change the core values of civil litigation by making litigation more efficient and effective, by making the civil justice system more accessible, and by changing the way we determine the facts and decide the case.’ And so at the outset of this contribution it should be noted that the technology of today can provide more than we could ever need with respect to the ‘electronification’ of judicial proceedings and what could lay the foundations for more effective and up-to-date litigious and non-litigious proceedings while still ensuring the required guarantees. The task of the experts of civil procedural law is to find the limits of the applicability of the technology instead of integrating all technical possibilities into the proceedings without criticism.

When establishing these limits attention should be paid to numerous theoretical and practical aspects, and one should find the ‘core’ of the procedural rules according to the aim of the proceedings, the basic values the continuity of which must be ensured. In W. Rechberger's words, ‘the cultural core of our procedure should not be “sacrificed on the altar of modern technology”’. This does not necessarily mean that the traditional interpretation should prevail and that the basic principles should not be touched; however, it is obvious that it is within this circle of rules that the above-mentioned stable core is to be looked for. For this very reason, when analysing this problem it is necessary to carry out a thorough review of basic principles, to be open to modern solutions, but to apply criticism and to search for equilibrium at the same time.

Specific attempts have been made to identify the principles the unchanged nature of which must be guaranteed. In Leipold's view, instrumental principles may be overridden or reinterpreted, e.g. the principles of orality and immediacy. However, the question is far from being that simple; it must be dealt with in a more refined way, for it is difficult to distinguish between basic principles on this ground.

Summary

DEFINITIONS AND VULNERABILITY FACTORS

“Vulnerability is a concept fraught with paradox. To start with, the concept is in common use but its meaning is imprecise and contested. Confusing, complex, vague, ambiguous are but a few of the labels scholars across disciplines have used to refer to it. (Bio)ethics and law, in particular, are disciplines which have spawned an extensive literature on vulnerability.”

Lourdes Peroni - Alexandra Timmer, Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law

“Vulnerability is our susceptibility to be wounded. This fragility is part of our nature and cannot be escaped. The best the brain can do is to shut down conscious awareness of it when pain becomes so vast or unbearable that it threatens our ability to function. The automatic repression of painful emotion is a helpful child's prime defence mechanism and can enable the child to endure trauma otherwise be catastrophic. The unfortunate consequence is a wholesale dulling of emotional awareness.”

Gabor Mate, In the Realm of Hungry Ghosts: Close Encounters with Addiction

“On and on the rain will say

How fragile we are“

Sting, “Fragile”

If an object is easily broken or damaged, we deal with it cautiously and treat it in a certain careful way. We even place a warning label on the box it is packed in or on the wrapping, reminding everyone who comes into contact with it, that it is fragile. We, human beings, ‘subjects’, although we have no warning label attached, are all fragile; fragility, as Gabor Mate put it in the quotation above, ‘is part of our nature and cannot be escaped’. True as this may be, however, some of us are even more fragile, or, to use another term, more vulnerable than others due to certain personal or external characteristics and features. Therefore, we have at least the same level of responsibility and duty of care towards them as is shown to objects: the responsibility to provide enough attention and concern, to ensure special treatment due to their specific needs, and to follow specific or exceptional norms to prevent them being injured and harmed, as far as possible.

Summary

DIRECTIVE 2012/29/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2012

establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee,

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure,

Whereas:

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RESTRICTIONS ON THE ADMISSIBILITY OF EVIDENCE

Summary

PRECLUSION OF LATE ALLEGATIONS AND EVIDENCE AS A TOOL TO INCREASE THE EFFICIENCY OF CIVIL PROCEEDINGS IN POLAND: A SHORT STORY OF THE UGLY PAST AND THE WAY TO A BRIGHT FUTURE

Summary

EVIDENCE IN CROSS BORDER CIVIL LITIGATION

WITNESS TESTIMONY IN DUTCH CIVIL PROCEDURE: FACTS, FIGURES AND STATISTICAL RELATIONS

Summary

List of Authors

THE 1970 HAGUE EVIDENCE CONVENTION, THE EUROPEAN UNION AND THE 2001 EU EVIDENCE REGULATION - INTERFACES

Summary

EVOLUTION OF THE POWERS OF THE JUDGE AND THE POWERS OF THE PARTIES REGARDING THE TAKING OF EVIDENCE IN SOUTH AFRICA

Summary

INTRODUCTION

IUS COMMUNE EUROPAEUM

EVIDENCE: LEARNING FROM ARBITRATION

Summary

EVIDENCE, INFORMATION TECHNOLOGY AND PRINCIPLES OF CIVIL PROCEDURE – THE HUNGARIAN PERSPECTIVE

Summary

Biographies of the authors

Annex 3 - CO-Minor-IN/QUEST survey (interpreters: signed language)

Annex 7 - Mind Map: Main Factors of high vulnerability among child interviewees

Annex 6 - CO-Minor-IN/QUEST survey (other professionals)

Chapter 3 - Interpreted interviews with highly vulnerable children

Summary

Annexes

Contents

Frontmatter

Annex 1 - Directive 2012/29/EU

Summary

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