Month: March 2023

The contractor sued our client (the ordering party) for the return of approx. PLN 9.5 million taken from a bank guarantee for the cost of rectifying defects and faults in the completed facility. The contract, with a value of approximately €72 million, was carried out under the ‘design and build’ (so-called ‘yellow FIDIC’) formula. The contractor was responsible for both the design and execution of the works and the rectification of any defects therein.

The court dismissed the contractor’s claim in its entirety. In a long and multifaceted trial, we proved that a contractor carrying out works under the ‘design and build’ formula assumes responsibility not only for the work performed, but also for the material selected to ensure that the investor’s objective is achieved. The key issue in the case was on whom the burden of proof rested, i.e. whether the contractor should prove the lack of responsibility for the defects created and, consequently, the lack of necessity to remove them at its expense. The court upheld our argument that the contractor’s withdrawal of the request for expert evidence was tantamount to the contractor’s failure to demonstrate its lack of responsibility for the defects in the building. The court took the view that the Contractor – represented by professional attorneys – should have filed the request for expert evidence and it is not the role of the court to act ex officio.

The court also took into account our claims that for the possibility to use the bank guarantee, it is not necessary for the investor to specify the amount of its claim for removal of the defect if the amount of this claim is not possible to determine at the time of notification to the contractor. Our client was therefore entitled to make use of the performance bond and have it credited towards the cost of rectifying the defects – even though the amount of the repair costs could not be determined at the time the bond was consummated.

The case was conducted by attorney-at-law Łukasz Matyjas and attorney-at-law Aleksandra Kieliszek, assisted by apl. adw. Piotr Celinski.

We advised on the strategic and legal aspects of the buyout by the existing shareholders, one of the minority shareholders in an internationally dynamic company focused on technological change and innovation in the brick & mortar (B&M) space. The transaction was a stepping stone to the next step in the company’s international expansion, commercialising Polish know-how in the most competitive global markets.

We advised as follows: Michał Romanowski, Aleksander Orzeł and Weronika Stefaniuk.

Our client-friend Paweł Juszczyszyn was brutally attacked by the President of the District Court in Bydgoszcz Maciej Nawacki on 1 March this year.

Read more: TVN24 and OKO.PRESS article

Paweł Juszczyszyn is fighting for freedom. He has sacrificed much, much to this fight. We support Paweł in this fight. We are winning everything!

We publish the open call (demand) that Prof. Michal Romanowski addressed to President Nawacki on 2 March 2023.

Excerpt:

“Your behaviour and denigration of Judge Paweł Juszczyszyn is probably the result of frustration with yet another defeat before an independent court and a panicky fear of the extent of civil and criminal liability that you will have to face when the Polish authorities begin to abide by the case law of the ECtHR and the CJEU. This fear is legitimate, for as history proves: ‘Those who want power and achieve it live in constant fear of losing it (Veronica Roth) […]. “You are blind, Cornelius, blinded by your love for the office you hold! […] You are incapable of understanding that it is not important who one is born to, but what one has become!”(Harry Potter and the Goblet of Fire). […] You are afraid, and that is why you do what you do.”.

Pawel Juszczyszyn is not afraid because he hopes that the law will prevail. This hope allows him to speak out when others say “be quiet”. This hope allows him to stand up when other people tell him “sit down”. We at @Romanowski and Associates are and will be with Paul, because like Paul we believe that the law may sometimes slumber, but it never dies! We believe that one must not be indifferent on fundamental issues, to compromise! After all, it is all about freedom! And what is more important for each of us and for business than freedom?

Text of the open call available: here.