Poland
Security may be sought in any civil case heard by a court or an arbitration tribunal. The court may grant security prior to the start, or during the course, of the proceedings. In principle, the court which is competent to hear a case at first instance is also competent to grant security.
Security may be sought by any party to (or participant in) the proceedings if the party/participant can substantiate its claim and legal interest (by demonstrating prima facie that its claim is legitimate and has a legal basis) in having the security or injunction granted. A legal interest in having the security or injunction granted exists where the absence of security or injunction would prevent, or significantly hinder, the enforcement of a judgment issued in the case, or would otherwise prevent or significantly hinder the objective of the proceedings being achieved. Except as otherwise provided by law, no security may be sought to satisfy a claim.
Pecuniary claims can be secured through:
- attachment of movable property, remuneration for work, bank account receivables, other receivables or other property rights;
- encumbrance of the debtor’s immovable property with a compulsory mortgage;
- injunction prohibiting the transfer or encumbrance of immovable property which has no land and mortgage register or whose land and mortgage register has been lost or destroyed;
- encumbrance of a ship or a ship under construction with a maritime mortgage;
- injunction prohibiting the sale of a cooperative title to premises; or
- receivership established over an enterprise, agricultural farm or plant constituting part of the enterprise (in whole or in part).
With respect to claims other than monetary claims, the court shall grant such an injunction as it considers appropriate in the circumstances, not excluding a form of security or injunction relevant to monetary claims. In particular, the court may:
- regulate the rights and obligations of the parties to or participants in proceedings or pending proceedings;
- prohibit the disposal of assets or rights involved in the proceedings;
- stay enforcement or other proceedings aimed at enforcing a decision;
- decide on the custody of minors and contact with a child; or
- order that a relevant warning notice be recorded in a land and mortgage register or another relevant register.
In principle, the court should grant the methods of securing the claims preferred by the claimant.
The process takes place ex parte, i.e. except as otherwise provided by a specific regulation, an order granting security issued in the judge’s chambers, and enforceable by an enforcement authority, is only served on the creditor. Service on the debtor is effected by the enforcement authority after the order has been made. In the case of an order granting security, the creditor’s appeal or the decision of the court of second instance regarding the appeal will not be served on the debtor when the decision is enforceable by an enforcement authority.
A prejudgment attachment must always be followed by a claim on the merits. If the court grants security before proceedings are commenced, the court will set a deadline for filing the statement of claim of two weeks from the order granting security. Security will be lifted if (i) the statement of claim is not filed by the deadline set by the court; or (ii) the creditor (a) does not pursue the entire secured claim; or (b) pursues a claim other than that which was secured.
Equally, if (i) the creditor fails to file a statement of claim by the prescribed deadline or withdraws a statement of claim; (ii) a statement of claim is returned or rejected; (iii) an action is dismissed; (iv) proceedings are discontinued; or (v) the creditor does not pursue the entire claim or pursues a claim other than that which was secured, the debtor may claim damages against the creditor for losses caused by the enforcement of security. The claim for damages has a one-year limitation period from the date when the statement of claim is returned or rejected, an action is dismissed or proceedings are discontinued. If an appeal is filed with the Supreme Court, the one-year time limit will start running on the day when proceedings are concluded with a judgment or decision that cannot be appealed.