COURT BEFORE THE COURT

I am negotiating with the court … compensation for an erroneous ruling.

About ten years ago, a client approached me for help, bringing with him copies of judgments of both instances. He had been ordered, by law, to pay the local electricity company a lump sum electricity charge, payable in the event of unauthorised consumption following interference with the metering and billing system (to put it colloquially: “bypassing” the metering system or “artificially” slowing down the movement of the meter). No extraordinary appeal was due against the ruling in the form of a cassation appeal. My doubts were raised by the fact that none of the rulings clearly mentioned the basis of the customer’s liability: it was not established that he himself had tampered with the metering system or had instructed someone to do so, and access to the meter located in the staircase box was unrestricted.

At that time, a new remedy was introduced into civil procedure – an action for a declaration of illegality of a final judgment. In principle, it is available in those categories of cases in which there is no cassation appeal (aimed at amending or overturning the judgment by the Supreme Court), if a party has suffered damage as a result of a substantively erroneous but final judgment. My client suffered such a loss – the adjudicated amount was fully collected by the power company, from successive instalments of his modest pension.

I proposed to the Client to file such a complaint and claim the illegality of the final decision – to the extent that it does not dismiss the claim, but awards the amount due from the Client to the claimant. In the complaint, I alleged that the ruling was incorrect in that the claim against the Client was upheld even though the plaintiff (the power company) failed to prove the prerequisites for the Client’s liability. To the Client’s and my satisfaction, after about six months I received a dispatch from the Supreme Court containing a ruling stating that the contested decision was unlawful.

The upholding of an action for a declaration of unlawfulness of a final decision shall not have the effect of

– unlike in the case of an appeal, complaint or cassation complaint – by amending or revoking a defective decision. Such a decision, despite being found defective by the Supreme Court, binds in the legal order as legally valid. The difference lies in the fact that, on its basis, damages caused by the “guilty party” – most often the defectively adjudicating court of second instance – may be claimed for compensation.

I only had to deal with the issue of compensation for the damages suffered by the Client. I drafted a polite letter to the president of the court of second instance … calling on the State Treasury, represented by him, to reimburse the Client for the amounts wrongfully awarded against him by the court and subsequently enforced. During a meeting with the president of the court of second instance, I quickly agreed on the content of a settlement agreement. On this basis, the State Treasury – the court of second instance returned the funds, enforced by the Client on the basis of the erroneous ruling.

Justice has finally been done. Although, in this case, not ‘thanks’ but ‘in spite of’ the erroneous ruling.