Preservation of Evidence: When and why it is Important

Sometimes, even before a case is filed, a question arises that is more important than what evidence we will use to prove our claim: will the evidence still exist when the time comes for the court to examine it?

Imagine, for example, that your apartment has been flooded by a neighbour. In order to limit the damage and make the property habitable again, repairs must begin quickly. But those very repairs may erase the traces of the flooding that will later be needed to establish the cause and the extent of the damage.

For situations like these, the law provides a special and extremely useful mechanism: securing evidence. Through it, certain evidence may be collected even before proceedings are initiated or at the very beginning of the proceedings, where there is a risk that later it may be lost, altered, or become significantly more difficult to collect. At the same time, evidence collected under this procedure has the same evidentiary value as evidence collected in the course of the main proceedings.

When can securing evidence be useful?

The procedure is particularly important when circumstances are changing quickly and delay may make proving the relevant facts impossible or much more difficult. In practice, the most common situations in which securing evidence is used include:

Construction defects and accidents: when the damage must be repaired immediately, but before the repair an expert needs to establish the cause and extent of the damage.
An ill or departing witness: when an important eyewitness is of advanced age, seriously ill, or is about to move permanently abroad.
Perishable goods or changing condition of items: when their physical condition may change within hours or days.
In cases involving bodily injury or improper medical treatment: when the injured person needs to take measures for treatment of the bodily injuries or to remedy the consequences of the improper treatment.

How Does the Procedure Work?

1. Filing an Application

An application for securing evidence may be made before the main proceedings have started, together with the statement of claim, or later in the course of the proceedings if the need for urgent collection of evidence arises subsequently.

Where the application is filed before the proceedings are initiated, it is addressed to the district court at the place of residence of the witness or at the location of the immovable property or item connected with the collection of the evidence. If the proceedings have already started, the application is made to the court hearing the case.

2. What Must the Application Contain?

It is not enough simply to state that the evidence is important. The applicant must indicate both the future or already existing dispute and why the evidence must be collected immediately. For this reason, the application must contain:

details of the claimant and the defendant in the case;
the circumstances from which the claim arises;
the specific evidence to be collected - for example, examination of a witness, an inspection or an expert examination;
the reasons why there is a risk that the evidence may be lost, altered or become more difficult to collect later.

3. Actions of the Court

After receiving the application, the court serves it on the other party so that they can also participate in the collection of the evidence and present their position. This is important because the material collected will subsequently also be used in the main proceedings, and the rights of the opposing party must be observed so that the evidence collected is not compromised.

The other party may also request the collection of evidence if it is closely connected with the evidence identified by the applicant. The reason is simple - the risk that one piece of evidence may disappear can affect the defence of both parties.

The proceedings may also be conducted where the name or address of the future opposing party is unknown - for example, in the case of bodily injury caused by an unknown perpetrator. In such a case, the court appoints a representative.

The court rules on the application by an order. If the application is not granted, the order dismissing it may be appealed. If the court grants the application, it takes the necessary steps to collect the evidence - appointing an expert, examining a witness, etc.

What Is the Evidentiary Value of the Evidence Collected?

The general rules apply to the manner in which evidence is collected and to its evidentiary value, which is the most significant advantage of this procedure. Evidence collected under this procedure has the same evidentiary value as evidence collected in the course of the main proceedings and subsequently becomes part of those proceedings.

Why is timing so important?

Securing evidence is a practical way to avoid a situation in which a right may have existed, but there is no longer any evidence with which to prove it.

Where circumstances are changing rapidly, a timely response may be decisive for the outcome of the future dispute. In addition, securing evidence can often provide guidance to both parties as to the future development of the case. If the evidence collected is decisive for the amount of the claim, or predetermines the final outcome of the main proceedings, it may also give the parties a reason to seek an amicable settlement of the dispute.

Why trust KGK Law Firm?

The team at KGK Law Firm has experience in proceedings for securing evidence. In some of our most complex cases, the timely use of the procedure for securing evidence has made it possible to obtain evidence which ultimately contributed to a favourable outcome of the case. If you need our assistance with a similar matter, you can contact us.