It is well known that those who lose a lawsuit are not only burdened with their own costs but also with the costs of the opposing party. In the worst situations, these costs significantly exceed the value of what someone is disputing or litigating. It is generally considered that the burden of proof lies with the one who sues, and if they fail in this, they will lose the lawsuit. Long ago, this was literally the case: courts were obliged to establish the so-called material truth; if a party did not propose evidence, the court could present it ex officio to establish it, but also to prevent various manipulations. What was once crucial has gradually ceased to be so due to the overload of courts, in order to resolve cases more quickly, to reduce their number, and to avoid losing the title of a nation with the highest number of cases per capita, etc.
No New Evidence
In this spirit (time will, we believe, show that we will at least partially regret what we had), in 2003, a novel to the Civil Procedure Act replaced the obligation to seek material truth with the principle of party disposition. Simplified, if the burden of proof is on you and you do not propose evidence, you will lose the lawsuit even if you have the right, simply because you failed to prove the truth. Thus, it is possible for courts to make absurd decisions simply because someone did not know or did not want to conduct the lawsuit properly. This has brought the burden of proof to the forefront, meaning it is crucial how familiar the parties are with these rules and how skilled they are in their application. The court will not assist them in any way because it is not obliged to establish the truth, but only the so-called judicial truth, which often has little to do with the actual truth. Even worse (or more burdensome) is that in 2013 another amendment to the same law was passed, which introduced many restrictions on proposing evidence. Once the so-called preliminary proceedings are concluded, the court will generally no longer accept new evidence. When we take into account the rules regarding the burden of proof, if it cannot reliably establish a fact based on the presented evidence, it will conclude on its existence or non-existence by applying the rules regarding the burden of proof.
The Same Misfortune – Two Judgments
It is true that the situation from jokes (in which there is some truth) where a young lawyer continues to conduct a lawsuit that his grandfather started and his father continued is no longer possible, and that is good, but there is also a downside. This is best demonstrated by an example: recently, a lawsuit was conducted in two Croatian courts between two brothers who were involved in the same traffic accident. The law allows a lawsuit where the defendant (insurer) is based, but also where the damage occurred, and if the damage resulted from bodily injury, where the plaintiff has residence or domicile. One brother sued in one court, the other in another; one won the lawsuit with finality, while the other lost it. Thus, he did not receive money and must pay all the costs of the proceedings (and because the judgment is final, he cannot reopen it). The brother who lost the lawsuit did not propose evidence thinking that everything was clear, especially since the other lawsuit had already been concluded. The rules regarding the burden of proof are clear: the plaintiff does not need to prove that the defendant is guilty, but it is his burden to prove that the damage occurred, what kind it is, and how much; if he does not do this, the court will reject him, regardless of how clear everything may seem according to some ‘street’ criteria to the detriment of the insurer. If the plaintiff had taken the burden of proof into account, he would not have missed the opportunity to propose that evidence be presented, for example, through medical expertise. This, of course, costs quite a bit and needs to be paid in advance, but if successful in the proceedings, it is part of the costs that are recognized.
