We recently read a particularly interesting publication by Dr Mathias Wittinghofer on Linkedin* on the introduction of statistical analysis for litigation risk assessment using the example of data on the effectiveness of appeals from District Courts (Landgerichte) to the Courts of Appeal (Oberlandesgerichte) in Germany.
According to the publication, after collecting and compiling statistics, the team working on the problem found that in 2021, a total of 61,327 appeals were lodged with the Courts of Appeal across Germany, and of these, only 8,136 resulted in the judgment of first instance being overturned and either a subsequent referral back to that court or a decision on the merits by the Court of Appeal. The remaining cases ended either with a contested judgment to the detriment of the appellant or with other measures such as settlement, withdrawal, default judgment, striking out of the appeal, etc.
Based on these figures, statistically 13.3% (= 8 136 / 61 327) of all appeals were successful in 2021.
The above study prompted us to check for ourselves how similar statistics are presented here in Poland. Thus, relying on data published by the statistical database maintained by the Ministry of Justice (https://isws.ms.gov.pl/pl/baza-statystyczna/opracowania-wieloletnie) concerning appeals in civil proceedings in District Courts and Appellate Courts between 2005 and 2021, we came to the following conclusions.
In 2021, a total of 42,704 (there were 82,222 cases to be handled) appeals to the Courts of Appeal were concluded in Poland, and of these, a total of 9,762 ended with the judgment of first instance being overturned and either the case being subsequently referred back to that court for reconsideration or a decision on the merits being issued by the Court of Appeal. The remaining cases ended either with a contested judgment to the detriment of the appellant or with other measures such as settlement, withdrawal, summary judgment, striking out of the appeal, etc.
Based on these figures, statistically 22.86 % (= 9,762 / 42,704) of all settled appeals were successful in 2021.
Thus, it follows from the above analysis that the assessment of litigation risk on the basis of statistical data in terms of the success rate of an appeal from a District Court decision to the Court of Appeal in Poland is almost twice as high as in Dr Mathias Wittinghofer’s publication in Germany. The question, however, is whether this difference is an advantage or a disadvantage?