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If the defendant in a commercial case did not file a reply to a lawsuit, a court may issue a verdict in absentia at a closed hearing. However, in a case in which the defendant was advised by adwokat Jan Ciećwierz (without appointment as an attorney), such verdict was not allowed, even though the defendant indeed did not reply to the lawsuit.

The dispute concerned payment for a building investment. The Wardyński & Partners client was an investor, who concluded a general contracting agreement. The general contractor for the investment commissioned the supply and installation in the building of specialised equipment to a sub-contractor. This was paid for by the investor to the general contractor. The sub-contractor maintained, however, that he did not receive due payment and therefore resolved to jointly sue the investor and general contractor for payment.

The general contractor filed a reply to the lawsuit in court, but the investor did not. The court therefore resolved to issue a verdict against the latter party in absentia. However, this was not allowed for several reasons that the investor outlined in opposition to this judgment on the basis of advice from adwokat Jan Ciećwierz.

Failure to reply to a lawsuit in a commercial case never constitutes an independent and satisfactory condition to issue a verdict in absentia. A court may issue such a verdict if case circumstances and plaintiff claims are indisputable. This was not the case here. This transpired from the reply to the lawsuit filed in court by the second defendant. He fully questioned the propriety of the claim put forward by the sub-contractor as well as its legal basis. The court therefore should have set hearings.

The subcontractor's claim in this case was groundless for several significant reasons. The investor fully fulfilled his obligations toward the general contractor. The fact that the contractor did not inform him of the concluded agreement with the plaintiff prevented him from adopting a position on its content and expressing consent thereto. Moreover, a significant part of the sought after remuneration was tied to a supply agreement toward which there is no basis to apply joint liability foreseen for construction work contracts.

The court repealed the verdict in absentia by stating that the investor was not bound to the sub-contractor by an agreement within the scope of supply that had the nature of a construction work contract. In turn, in relation to sub-contractor work that could be qualified as construction work, the investor was not informed of the concluded agreement with the sub-contractor and thereby there is no basis to apply joint liability of the investor with the general contractor.

This verdict nevertheless had a clause for immediate enforceability. In such a situation, the investor was forced to pay remuneration to the sub-contractor, whereby he filed a declaration on fulfilment of an undue benefit with the stipulation for reimbursement. Furthermore, in order to interrupt the statute of limitations, he called on the general contractor to conclude a settlement for reimbursement of this payment for the purpose of expiry of eventual claims in investor relations with the general contractor.

The sub-contractor ultimately returned the improper benefit rendered by the investor on the basis of a legally invalid in absentia verdict.