The Counterattack
In Polish civil litigation, a defendant facing a lawsuit has more options than simply playing defense. The counterclaim—known in Polish as pozew wzajemny—allows the defendant to become, in effect, a plaintiff in the same proceeding, transforming a one-sided dispute into a bilateral contest. But this procedural maneuver comes with conditions: the counterclaim must either relate to the original claim or be suitable for set-off.
Two Paths to the Same Courtroom
A counterclaim may be filed in two situations. The first involves a connection with the main lawsuit—some factual or legal nexus that makes joint consideration sensible. The second doesn’t require any such connection but demands that the claims on both sides be suitable for set-off, a legal mechanism that allows mutual debts to cancel each other out. When two parties are simultaneously each other’s debtor and creditor, either may set off its claim against the other’s, provided both claims involve money or fungible goods of the same type, both are due and payable, and both may be pursued before a court or other state authority. Through set-off, both claims are extinguished to the extent of the lower one.
When a counterclaim is filed, two separate proceedings merge. Both the main claim and the counterclaim must satisfy all formal requirements prescribed for ordinary complaints under Articles 126 and 187 of the Code of Civil Procedure. The court considers the merits of each separately.
In cases involving a counterclaim, the trial court must rule on the merits of both claims. If both are wholly or partially valid, the court must award appropriate amounts to each party. When a claim is only partially valid, the court must dismiss it in the remaining part. (The Supreme Court established this in October, 1984.)
A counterclaim can always be pursued as an independent claim, including as a separate lawsuit. The purpose of the solution prescribed in Article 204 of the Code of Civil Procedure is to allow joint consideration of two related cases, avoiding divergent decisions about the same factual situation by different courts while making it easier for parties to pursue their claims and expediting their resolution. Although filing a counterclaim produces a special consolidation of claims within a single case, the counterclaim retains its independence; joint consideration of both claims doesn’t deprive them of procedural separateness. (The Supreme Court confirmed this in March, 2015.)
For instance, an order returning the response to the main complaint may affect the resolution of the main claim but has no effect on the second proceeding—the one initiated by filing the counterclaim. There’s no basis for assuming that returning the response to the main complaint could result in accepting the plaintiff’s allegations as true insofar as they relate to the counterclaim. (The Szczecin Court of Appeals ruled accordingly in May, 2017.)
Timing Is Everything
A counterclaim may be filed no later than in the response to the complaint or—if no response was filed—in the opposition to a default judgment, or at the beginning of the first hearing of which the defendant was notified or to which the defendant was summoned.
When a defendant misses this deadline, the document filed cannot be treated as a counterclaim and must therefore be separated for independent consideration, to be processed as a separate complaint.
An Alternative to Set-Off
Under Articles 498 and 499 of the Civil Code, declaring one’s intention to set off requires that the parties be mutual creditors. This means that someone wishing to use set-off must consciously accept the existence of a reciprocal claim against them. If the defendant doesn’t make such a declaration, he may use a counterclaim instead.
One might say that a debtor who holds reciprocal claims against the plaintiff has a choice of defensive strategy and a choice in how to realize his claim. He may either raise a procedural defense of set-off or file a counterclaim. If his claim exceeds the plaintiff’s, he may combine both forms, seeking set-off up to the amount of the plaintiff’s claim and filing a counterclaim for the remainder. Both forms of procedural defense may be undertaken by the defendant only within strictly defined time limits. A counterclaim may be filed only within the time specified in Article 204, Section 1, and a defense of set-off may generally be raised by the defendant only until the close of the hearing before the trial court. Exceptionally, when the defendant shows he couldn’t do so earlier, he may raise the defense until the close of the hearing before the appellate court (Article 381). (The Supreme Court explained this in November, 2009.)
The defense of set-off is usually more advantageous for the defendant due to the absence of costs and the circumstance that the court must, as a rule, consider such a defense. It bears emphasizing that the defendant cannot, as a rule, raise claims he holds against the plaintiff in any manner other than through the mechanisms described above. (The Kraków Court of Appeals held this in October, 2012.)
Put differently, one cannot raise a defense of set-off without simultaneously acknowledging that the claim being set off exists. A declaration of set-off made conditionally or hypothetically should not be deemed effective. If the trial court, in considering the case, develops doubts about the permissibility of the defendant’s construction of the set-off defense, it should elicit clarification of the defendant’s position and determine whether the set-off defense involves an unconditional intention to make a declaration disposing of the claim being set off (thus losing its conditional character), or whether it actually merely aims to pursue a reciprocal claim in the proceeding (for example, under Article 204). Conducting such procedures clarifies the substantive scope of consideration in the proceeding and allows the parties to present their positions appropriately—something that becomes essential in light of the standards set by the need to protect the constitutionally guaranteed right to a fair trial (Article 45 of the Polish Constitution). (The Szczecin Court of Appeals ruled thus in October, 2018.)
It’s impermissible for a court to set off claims when the defendant hasn’t unequivocally raised a procedural defense of set-off but instead filed a counterclaim for a claim that was set off before the proceeding. (The Supreme Court held this in November, 2009.)
Choosing the Right Court
A counterclaim is filed in the court where the main complaint was filed. However, if the counterclaim falls within the jurisdiction of a regional court while the case was initiated in a district court, that court transfers the entire case to the court with jurisdiction over the counterclaim.
April 9, 2024
Robert Nogacki is a Polish attorney at law (radca prawny), the founder and managing partner of Kancelaria Prawna Skarbiec (Skarbiec Law Firm), which has operated continuously since 2006.
The law is equal for everyone, but the parties rarely are: on one side stands an organization with time, money, and lawyers, on the other a person with one business, one nest egg, and one life.
Clients rarely come to him with a legal problem. They come with a problem that also has a legal side: an audit that began with a single invoice, money entrusted to someone who has disappeared, a company that has to be passed on before it is too late. Most such matters are decided long before the first letter is written, in decisions made without asking and in deadlines nobody remembered. So he begins by asking how the client got here, not what the client should have done.
He advises entrepreneurs and families from more than a dozen countries, including those whose accounts the tax office has just seized and who do not know what to do tomorrow morning. He defends them in tax audits, customs and fiscal inspections, disputes with the tax authorities, and criminal tax proceedings. He represents victims of investment fraud and Ponzi schemes. He helps families set up family foundations and plan succession, so that a life’s work outlasts a single generation.
Not every case can be won. Every case can be run so that the client knows where they stand. Since 2006 he has represented the victims in the WGI case (Warszawska Grupa Inwestycyjna, the Warsaw Investment Group), one of the longest criminal cases in the history of the Polish financial market, because some things must not be left half finished, even when they take two decades. In the case of the collapsed cryptocurrency exchange Zonda (Zondacrypto, operated by BB Trade Estonia OÜ), he represents several hundred victims in the criminal investigation conducted by Poland’s National Prosecutor’s Office and in the Estonian bankruptcy proceedings.
Kancelaria Prawna Skarbiec is listed in the rankings of Poland’s largest tax advisory firms published by Dziennik Gazeta Prawna and Rzeczpospolita, and it is a four-time recipient (2015 to 2018) of the European Medal awarded by the Business Centre Club and the European Economic and Social Committee. Robert Nogacki publishes regularly, in the press and on the firm’s website, for people who have a problem rather than a law degree, because a legal opinion the client cannot understand protects only the lawyer.
He believes that the best legal advice is the kind that means the client never has to appear in court.
