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Evidence should be collected in advance, so that if a dispute arises, one can efficiently prove the relevant facts and thus the claim being asserted. However, it is important to approach the issue of evidence practically, in order to document relevant circumstances as accurately and quickly as possible, while saving time and money. In this regard, it is good to keep abreast of the latest technological developments, which can be helpful both during the project execution and in case of a possible dispute.
One of the solutions introduced into the commercial proceedings in 2019 is the institution of an evidence agreement, regulated by Article 458[9] of the Code of Civil Procedure, which, when certain conditions are met, allows to modify the rules of evidence by excluding (for the future) particular evidence or types of evidence from the court proceedings.
The possibility of concluding such an agreement is subject to certain conditions – it can be concluded only in regard to a specific legal relationship stemming from parties’ contract (or claims related to the legal relationship created by its conclusion). Thus, an evidence agreement cannot be concluded in a case originating, e.g. from tort liability. It is also necessary to conclude the evidence agreement in writing, under pain of nullity.
Nevertheless, such agreement does not have to constitute a separate document – the relevant provisions can already be included in the main contract. It is also possible to conclude an evidence agreement orally in front of the court – the agreement is then entered into a written record of a court hearing.
Importantly, the law does not regulate the question of what evidence can be covered by an evidence agreement. Thus, the evidence excluded from the proceedings by the agreement can be described in general terms (e.g., documentary evidence, expert opinion, witness testimony) or can be specifically indicated (e.g., testimony of a particular person or group of persons, specific documents or their type) [1].
Introducing appropriate restrictions as to the types of evidence that can be used in court proceedings may significantly expedite the proceedings, reduce the costs and decrease the workload. Questioning witnesses usually takes a long time and necessitates several to even a dozen or so hearings. So does collecting extensive evidence to prove the actual performance of the contract. Workload of this magnitude also entails a corresponding financial outlay to carry it out. Given the above, excluding some of the evidence from the proceedings in favor of more efficient ways of proving the facts is worth considering.
According to the wording of Article 309 of the Code of Civil Procedure, the catalogue of the means of evidence admissible in court is open, so anything relevant to the case may be used as an evidence. Due to this, there is no obstacle to introducing into the proceedings evidence that use the latest technological achievements, including artificial intelligence. An example of such evidence can be AI-generated reports created automatically by a tool form AI Clearing. We got the chance to make acquaintance with AI Clearing while analysing the technological solution they are currently developing. This article was prepared in co-operation with the company. AI Clearing’s tool allows for ongoing monitoring of the progress and contractual compliance e.g. of the completed works and subsequent use of cyclically generated reports for billing purposes or – from a trial lawyer’s perspective – in the event of a dispute.
Data collected by a drone in the form of high-resolution photographs is analysed not by a human, but by artificial intelligence, which identifies the various elements visible in the photograph, plotting them on the project and indicating which works have been performed. Road construction can be given as a simple example of the application of such a tool.
On the basis of a CAD design, a virtual model of the realization of the construction project is created, onto which AI will then apply information about the work performed.
This information is collected from recurring, e.g. weekly, drone inspections. A drone can fly over even the largest construction sites in a matter of minutes and take high-resolution photos. These images are then sent to the cloud and combined in a photogrammetric process. This process produces an accurate 3D model of the entire construction site area and a so-called orthophotomap. Importantly, these products include a reference to the geodetic control network so that the exact geographic location of the objects in the photos is known. This alone can serve as very useful information in legal proceedings.
Afterwards the AI models come into play. The models are based on so-called Deep Learning that is supposed to „imitate” the neural networks in our brains. Based on huge training data sets, the AI models have been taught to recognize dozens of types of construction objects. In result, it is easy for the models to analyze photos and report their observations. This way, one receives information whether and when the asphalt was poured, (all?) manholes were installed, curbs were laid and so on.
Such data serves not only as an aid at the contract execution stage (they make it easier, for example, to catch that a road is being built in a place that does not conform to the design, or to determine the quantity of a given raw material – e.g. gravel – that was used at the construction site), but also allows to gather in one place detailed information about the progress of the contract execution.
In the case of multi-year or complicated projects, these issues often raise evidentiary difficulties due to the fleeting nature of human memory, changes in personnel, the vast documentation or to the contrary – lack of detailed documentation of the progress of the works.
With advanced technological solutions it is possible not only to accurately demonstrate the course of the project – including any delays – and the status of project execution at any given date, but also to acquire valuable information for the purposes of, for example, both calculating and mitigating contractual penalties or determining adequate remuneration.
It has always been known that evidence is collected in case a project fails. The problem is that this is often forgotten when the implementation of a contract is at its beginning and parties’ relations are friendly. On the other hand, when these relations deteriorate it is often already difficult to fill in the existing gaps in documentation or other shortcomings. Then, one is faced with evidentiary difficulties and has to arm oneself with patience for the upcoming years of proceedings.
Therefore, it is worth approaching the issue proactively, collecting non-volatile evidence and limiting the evidentiary proceedings with an evidence agreement, thus saving time and money, which can be spent on other tools that will not only secure our evidence “for a rainy day”, but also facilitate the work during the execution of the contract.
It is worth remembering that new technologies significantly speed up the work, are much more cost-effective, and reduce human participation in tedious activities that are additionally prone to human error. At the same time, the „harnessing” of such solutions as those offered by AI Clearing does not completely eliminate the need for human involvement, as there always remains the need to verify the results obtained or monitor their correctness. This is an example of the synergy of a man and „machine”, which translates into even better results, both in the court proceedings and more broadly – in business.
[1] T. Wiśniewski [w:] D. Dończyk, J. Iwulski, G. Jędrejek, I. Koper, G. Misiurek, M. Orecki, P. Pogonowski, S. Sołtysik, D. Zawistowski, T. Zembrzuski, T. Wiśniewski, Kodeks postępowania cywilnego. Komentarz. Tom. II. Artykuły 367–505(39), Warszawa 2021, art. 458(9).