Gathering the right evidence - the key to successful fraud litigation in Poland

Evidence plays a critical role in proceedings and particularly in civil fraud litigation. It is often unlikely that a claimant will, from the outset, have at hand all the proof required to bring its case with persuasive evidence: they may instead expect to uncover the key evidence through tactical pre-action and interim applications (depending on the jurisdiction). It is even less likely that they will know where the proceeds of fraud or stolen assets have gone. Crucially, without being able to trace those assets (to then freeze and seize them), what is the point in proceeding on a civil basis, the benefit of which is supposed to be speed and recovery, as opposed to waiting for a criminal investigation and prosecution.
 
Nevertheless, in a civil law country (such as for instance Poland) a claimant very often has no choice but to turn to criminal law in order to gain the relevant information about the perpetrator and the key evidence. Unlike the common law countries, Polish civil procedure do not include sufficient measures for pre-action disclosure, search warrants or similar orders for obtaining information so a victim of a fraud has no possibility to gather evidence in civil proceedings.
 
As a general rule, pre-trial discovery is not a recognised concept under Polish law. In order to obtain evidence in Polish civil proceedings, a party must first commence a civil claim. However, even after filing a civil claim, disclosure duties and tools remain very limited and disclosure requests can only target specific pieces of evidence or information.
 
In contrast to civil proceedings, Polish criminal proceedings offer wider investigatory measures allowing a claimant to obtain evidence at any stage of the investigation – for example, by requesting searches or the seizure of documents, data or assets. This means that, although the prosecution are the ones eventually deciding on the direction of criminal proceedings, often the best way for victims of fraud or other criminal offences to gather and secure evidence is by filing a criminal complaint. Once admitted as a claimant in criminal proceedings, a victim is entitled to a criminal file with the right to use evidence collected in support of any further proceedings.
 
Under Polish law, there is nothing to prohibit the use of parallel criminal and civil proceedings. On the whole, criminal proceedings - aim to identify and punish the perpetrator while civil proceedings - aim to resolve a dispute between the claimant and the defendant. In theory, both proceeding have nothing in common so the claimant can take the evidence from the criminal courtroom and use it in the civil courtroom. The only caveat to this is when there is a real risk that the defendant would be subject to severe prejudice in either criminal or civil proceedings. Notwithstanding these difficulties, the advantages of a multi-pronged attack can be really rewarding to the claimant. Naturally, there are some potential pitfalls that can occur when evidence is gathered through the investigation of one set of proceedings and whether it can be used in the other. This is particularly important in cross-jurisdictional proceedings.
 
When we receive the first contact or introduction to a potential client who considers that they have been a victim of fraud, whether it is an individual or a corporate entity, there are a number of important matters that need to be considered at the pre-action stage of a case. The client will often be focused on the loss and the events leading up to it, and will not necessarily give any immediate thoughts to how that loss can be recovered. However, it is important at the outset to not only look at the nature of the complaint, but also to identify who can be pursued and, critically, whether they are worth pursuing financially. To that end, asset tracing is a fundamental consideration at the beginning of a fraud claim, not just at the enforcement stage.
 
Today, fraud, asset tracing and recovery cases are rarely domestic in their entirety. Misappropriated assets are often hidden across national borders and require international cooperation to be traced effectively. This is why it is vital to involve experts in asset recovery from the very beginning and use appropriate measures.

When it comes to Europe, the claimant in one EU country can rely on the formal cooperation between public prosecutors in other EU countries through the European Investigation Order (EIO). This is a very effective tool. It is a judicial decision issued in or validated by the judicial authority in one EU country to have investigative measures to gather or use evidence in criminal matters carried out in another EU country. It is valid throughout the EU, but does not apply in Denmark and Ireland. The EIO is based on mutual recognition, which means that the executing authority is, in principle, obliged to recognise and ensure execution of the request of the other country.
 
The EIO was established by Directive 2014/41/EU of 3 April 2014. The Directive created a single comprehensive framework for obtaining evidence. The investigative measures include, for instance, the hearing of witnesses, telephone interceptions, covert investigations and information on banking operations.
 
The EIO is used effectively in Europe. It offers judicial authorities a simpler and faster alternative to the traditional instruments for requesting evidence. In particular, the instrument provides practitioners with a single standard form for obtaining evidence. It outlines strict deadlines and establishes limited possibilities for refusal by the executing state.
 
Each civil fraud is a serious challenge. Fraud is by its nature covert and deceptive, which makes evidencing a claim all the more difficult and there’s the risk that a fraudster will dissipate assets. Gathering the right evidence at an early stage of the proceedings is of key importance.