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How do you identify the merits of a case in litigation?

Issue still not entirely clear.

Does the absence of an appellant’s request to adjudicate on the merits of the case and the restriction of the individual grounds for appeal  to an objection of failure to adjudicate on the merits of the case bind the appellate court and prevent it from adjudicating on those merits – ie. from varying the contested judgment instead of referring the case for reconsider, initiating a next process?

What does failure to adjudicate on the merits of the case mean?

Is the recognition for the first time only by the appellate court of the relevant factual or legal circumstances the same as a failure by the court of first instance to adjudicate on the merits of the case?

Where should one look for the criterion for distinguishing between “failure to adjudicate on the merits of the case” and “failure to consider certain factual or legal findings” when the factual basis of the claim itself, to which the plaintiff is bound, remains undiscovered?

The Constitution and the principle of right to appeal.

Such problems arise on the occasion of the settlement of a dispute over the construction of an industrial air purification installation, in a case concluded by the judgment of the Court of Appeal in Lublin, ref. no. I AGa 63/25.

1.The Court of Appeal adjudicated on the merits of the case, despite the request to refer the case back to the court of the first instance for reconsideration and the absence of a petition to conduct a trial. In its statement of reasons the Court of Appeal noted that it may reconsider the merits of the case and its individual parts, although that duty is incurred by the court of first instance, and therefore the Court of Appeal may vary the judgment and reconsider the case on its own..

Infringements of the rules of procedure as done by the court of first instance, in view of the collection of evidence, consisting in the erroneous recognition of a claim which was not the subject of a party’s demand, may be verified and corrected by the appellate court, especially when the judgment was appealed by only one party to the trial.

If infringements of the rules concerning factual or legal findings are found, the court of second instance may make these findings itself.

For:

I.under the current model of appeal, the full role of the second instance court is not limited to the mere act of reviewing the appealed decision, but also includes the duty to adjudicate on the merits of the case, and the setting aside of the first instance judgment and referring the case back to the court of first instance for reconsideration is exceptional. The conditions allowing the case to be referred back for a reconsideration, such as failure to adjudicate on the merits of the case and failure to conduct an evidentiary hearing in its entirety, should not be interpreted in an expansive manner.

Any other defects of the decision apart from the invalidity of the proceedings do not justify the setting aside of the judgment and referring the case back for reconsideration (cf. decision of the Supreme Court of 10 December 2024, No. III CZ 219/24).

2. It follows from the judgment of the Supreme Court of 17 April 2008, II PK 291/07, that the setting aside of the judgment of the court of first instance and referring the case back for reconsideration takes place in the event of finding such defects in the proceedings of the court of first instance, which the court of second instance may not remove on its own, despite the fact that it is a court in meriti the judgment of which – despite taking into account the findings and views of the court of first instance – is based on its own legal and factual grounds, pursuant to Article 382 of Kodeks Postępowania Cywilnego (the Polish Code of Civil Procedure).

The finding by the court of second instance that it is necessary to decide for the first time on the relevant factual or legal circumstances of the case is not the same as admitting a failure by the court of first instance to adjudicate on the merits of the case.

Under the applicable model of full appeal, the court of second instance has the competence to conduct the examination procedure, both in terms of collecting the trial material and legal assessment, on an equal footing with the court of first instance.

If deficiencies in factual or legal findings are identified, the second instance court may make these findings itself.

Accordingly, there are no grounds to conclude that the court of first instance failed to examine the merits of the case, due to the absence of a reason justifying a cassation ruling.

II. There remains, however, the unresolved issue of how to distinguish failure to adjudicate on the merits of a case from failure by the court of first instance to examine the factual basis of the plaintiff’s claim on which it based its claim?

And this issue relates to the fundamental issue, which is the correct formulation of individual grounds for appeal by the party challenging the first instance judgment.

However, the Court of Appeal in Lublin, while formulating or recalling the principles of the full appeal model, did not formulate a specific guideline.

Interestingly and extremely rarely, in this case, both the plaintiff and the defendant (counterclaimant) agreed in their procedural positions that the merits of the case – that is, the basis of the counterclaimant’s claim – had simply not been adjudicated on.

The Court of Appeal did not share this view of both parties.

Where, then, should one look for the criterion for distinguishing between ‘failure to adjudicate on the merits of the case’ and ‘failure to examine certain findings of fact or law’?

Especially when they are the essence of the trial – i.e. the ‘basis of the claim’ binding on the claimant?

This lack in the Court of Appeal’s reasoning is its weakness, which will no longer be cleared up in this trial with the help of the Supreme Court.

And finally, the Constitution!

What about preserving the principle of a right to appeal in the event that the Court of Appeal does not accept the grounds of the appeal and decides negatively on the appeal and the claimant’s (counterclaimant’s) claim?