In a large number of civil-law relationships between parties, there is a need to initiate proceedings for the preservation of evidence in order to establish the current state of affairs and secure evidence that may be relevant to future civil litigation.
Over the past several months, we have been approached by a large number of clients in connection with various types of legal proceedings, including claims for damages, the remedying of construction defects, and other matters in which the preservation of evidence is necessary to establish the actual state of affairs.
The preservation of evidence procedure is regulated by the provisions of the Croatian Civil Procedure Act (Official Gazette Nos. 53/1991, 91/1992, 112/1999, 129/2000, 88/2001, 117/2003, 88/2005, 2/2007, 96/2008, 84/2008, 123/2008, 57/2011, 25/2013, 89/2014, 70/2019, 80/2022, 114/2022, 155/2023 and 146/2025) and is generally conducted before civil litigation is initiated.
In practice, preservation of evidence proceedings are used in various types of disputes, most commonly in matters involving contractual or non-contractual liability and claims for damages arising from a situation in which one contractual party fails to fulfil its obligations under the agreement.
In a recent case in which we represented a foreign national in a claim for damages, the proceedings were initiated because the other contracting party had failed, under a lease agreement concerning a plot used as a campsite pitch, to provide sufficient electricity, water and other utility connections necessary for the commercial rental of a mobile home. The other party had also failed to fulfil its contractual obligation to arrange the surrounding area and provide adequate access to the campsite.
In that particular case, the preservation of evidence procedure established the current state of affairs and provided an important evidentiary basis for subsequent proceedings concerning the termination of the agreement and a claim for loss of profit.
The purpose of preservation of evidence proceedings is to establish and document the actual state of affairs through a formal court procedure in which the parties are given the opportunity to participate and exercise their procedural rights. The findings obtained in such proceedings may subsequently be used as evidence in civil litigation, subject to the court's assessment of all evidence presented in the proceedings.
Preservation of Evidence in Cases Involving Construction Defects
In another case, we initiated preservation of evidence proceedings on behalf of a client in order to establish construction defects in a property – a villa built for our client by a contractor.
The construction works were carried out under a turnkey construction agreement. The works were performed improperly and, in part, were not carried out at all, resulting in moisture penetration and other adverse consequences for the property. As a result, urgent remedial works became necessary.
Before undertaking such urgent repairs, it was necessary to establish and document the actual condition of the property through preservation of evidence proceedings, including an expert assessment by a court-appointed expert.
This was particularly important because carrying out the repairs could subsequently make it significantly more difficult to establish the nature, extent and causes of the defects.
Once the preservation of evidence procedure has been completed, the client may, where the legal requirements are met, initiate proceedings against the contractor for damages and other appropriate claims. In such proceedings, the client may seek compensation for damage caused by the established defects, the costs of repairing them through third parties, and other recoverable costs. Subject to the applicable rules on litigation costs and the outcome of the proceedings, the costs incurred in the preservation of evidence proceedings may also be relevant.
Why Is the Preservation of Evidence Procedure Important?
Preservation of evidence does not mean that the court has predetermined who is liable for the damage or which party will ultimately prevail in future litigation. Its purpose is to ensure that important evidence is obtained and documented in a timely manner where there is a risk that it may later become unavailable or significantly more difficult to obtain.
This is particularly important in cases involving construction defects, damage to real estate, construction and investment projects, as well as contractual and non-contractual liability.
For example, where a property has suffered water ingress or other construction defects requiring urgent repairs, it may be essential to document the existing condition and establish the causes and extent of the defects before any remedial works are carried out.
Timely preservation of evidence can therefore provide a strong evidentiary foundation for subsequent litigation and enable the client to protect and effectively exercise their rights before the court.
Conclusion
In many civil-law relationships that may ultimately result in litigation, it is important to consider, at an early stage, whether preservation of evidence proceedings should be initiated.
This is particularly relevant in matters involving:
- construction defects and construction works;
- damage to real estate and other property;
- investment projects;
- contractual relationships;
- claims for damages;
- contractual and non-contractual liability; and
- situations in which there is a risk that evidence may change, deteriorate or disappear.
Timely preservation of evidence can be crucial for the subsequent protection of a client's rights, as it enables relevant facts to be established and documented before circumstances change in a manner that could make them more difficult to prove.
The Law Office of Luka Mrkić successfully represents clients in preservation of evidence proceedings and subsequent claims for damages and other forms of legal protection.
If there is a risk that the condition of property or other relevant circumstances may change, timely legal advice and appropriate action can be essential to ensuring the effective protection of your rights and interests before the court.
This is particularly important in construction-related matters, investment projects, and other disputes involving contractual and/or non-contractual liability for damages.
