The decision was changed by the decision of the Court of Appeals in Warsaw, 6^th Civil Division of 25^th March 2014, file ref. no. VI ACz 4778/13, by dismissing the defendant’s motion for obligating the claimant to make a deposit.

1. The manner of determining the deposit is based on the establishment of a probable total of costs to be borne by the defendant in group proceedings.
2. The deposit for securing the costs of group proceedings aims to secure the defendant’s interests against an unsubstantiated initiation of group proceedings and is to guarantee that the claimant will reimburse the defendant for the costs incurred thereby.

1. The court is obligated to hear evidence from the expert’s opinion if it arrives at a conviction that a circumstance of substantial significance for the correct settlement of the case may be explained exclusively as a result of taking advantage of the know-how of a person possessing specialist knowledge. In such a situation, evidence from an expert’s opinion may not be replaced by other evidence activities or reasoning. In particular, using specialist knowledge from other proceedings is inadmissible. Such an activity glaringly violates the fundamental principles and norms of procedural law, disqualifying an adjudication made on this basis.

1. Considering that the present case is pending pursuant to the provisions of the Act on pursuing claims in group proceedings, it is necessary to take into account the separate nature of these proceedings and consider whether the requirements related to the statement of claims and regulated in Article 6 section 1 of the Act should not at least partly apply also to determination of the security deposit. It also seems that the very nature of granting security of claims, in the event the motion is found, if only partly, substantiated, should also take into account the appropriate application of regulations included in the quoted Act, in particular in Article 21 section 2, if under Article 743 of the CCP (Polish Code of Civil Procedure), applicable by virtue of Article 24 section 2, if the decision on granting security of claims is subject to enforcement by way of execution, then provisions on enforcement proceedings apply to its execution respectively.

1. The scope of claims subject to pursuing in group proceedings is limited. Under circumstances of a specific case – in light of the claimant’s statements – it pertains solely to claims based on the statements on perpetration by the defendant of a tort injurious for the claimant and other members of the group.
2. From Article 4 section 1 and 3 of the Act (Polish Act on pursuing claims in group proceedings) it follows that a statement of claims in group proceedings is filed by the group’s representative who conducts the proceedings on his own behalf but also on behalf of all members of the group. Moreover, under Article 21 section 1 of the Act, the operative part of the verdict must name all members of the group or subgroup. In relation therewith, the Court of 1^st instance incorrectly formulated the operative part of the challenged verdict, omitting the listing of all members of the subgroup and in point 2 of the operative part determining the claimant in plural.

1. To become a consumer, a natural person should enter into a legal relationship with an entity conducting a business activity. In the case of the notion of a consumer, the issue is not a personal characteristic of a natural person, but the analysis of the obligational relationship the claim from which such a person is pursuing. Whether the entity is a consumer or not is decided by who they enter into relations with and what the nature of such relations is.
2. It is impossible to share the view that, depending on the nature of the relationship, the housing cooperative may appear in a double role: in the capacity of an entrepreneur, e.g. when managing assets constituting property of its members, it pursues property claims, or in the role deprived of the entrepreneur attribute when the case pertains to the area covering residential needs of its members. In the scope of the activities aimed at broadly understood satisfaction of residential needs of its members it conducts, the cooperative must be treated identically as other entrepreneurs.

1. Under Article 4 section 1 of the Act of 17 December 2009 on pursuing claims in group proceedings, the statement of claims in a group proceedings is filed by the group’s representative. Thus, a group representative who have brought a group action on behalf of the group’s members is a claimant (a party) in the procedural sense. In turn, the group’s members on whose behalf the representative has filed a statement of claims are a party in the material sense.
2. The court’s decision on the composition of the group is of a constitutive nature. It is not a statement of a specific person on joining the group, but only the court’s decision on the group’s composition finally shapes the group’s composition in a group proceedings. Bearing in mind this constitutive nature of the decision on the composition of the group, it is possible to find that after the decision on the group’s composition becomes final, the court does not examine whether the group’s member, in terms of principle, is entitled to the status of a party in the material sense. However, it is necessary to indicate that no regulation of the Act on pursing claims in group proceedings provides that after the decision on group’s composition becomes final, the court may not examine the material locus standi of the groups’ member.

The Regional Court for Warsaw-Praga, 3^rd Civil Division in the following ruling bench:

Presiding Judge:   Ewa Dietkow, Regional Court Judge

Judges:   Beata Karczewska-Mazur, Regional Court Judge, Radosław Olszewski, Regional Court Judge

having examined on 24^th September 2013 in Warsaw at the hearing in camera the case filed by S.P. against J.W. (…) joint-stock company for payment

hereby decides to:

1. publicly announce the commencement of the group proceedings in the case filed by S.P., acting as the representative of the group, against (…) joint-stock company, file ref. no. III C 491/12 for payment, by displaying the the following announcement in the court’s building for a period of one month

1. The decision concerning composition of the group which is rendered pursuant to Article 17 of the Act on Pursuing Claims in Group Proceedings, may only decide on granting the group member status to persons who, following the announcement on commencement of the group proceedings, submitted declarations on joining the group to the group representative. Therefore, the court may not reassess whether the persons who joined the group at the stage of filing the statement of claims met the premises required by the Act. This is because with respect to these persons, the decision on examining the case in group proceedings resulted in determining the composition of the group. The conclusion of that stage of group proceedings means that objections in respect to the composition of the original group may not be raised.
2. The burden of presenting facts in favor of admissibility of group proceedings, a particular person’s participation in a subgroup, as well as the burden of submitting to court the evidence proving these facts, shall rest with the group representative. The consequence of a failure to comply with this obligation at the stage following the announcement on commencement of group proceedings and submission of the declaration on joining the group by new members is a refusal to grant the group member status.
3. Submitting a declaration on joining the group dies not suffice to prove that a person belongs to the group; at this stage, the Act on Pursuing Claims in Group Proceedings requires verifiable evidence to be submitted. Participation of particular individuals in the group may be proved by all means of evidence.
4. However, the Act on Pursuing Claims in Group Proceedings does not require a declaration on joining the subgroup, indeed not only does a failure to indicate the amount of demand preclude qualification of individuals freshly joining the proceedings to a particular subgroup but also – to the group in general.

The Regional Court in Kraków in the following ruling bench:

Presiding Judge: Ewa Olszewska, Regional Court Judge

Judges: Anna Rakoczy, Regional Court Judge; Andrzej Żelazowski Regional Court Judge

having examined on 10^th September 2013 at the hearing in camera the case filed by (…) against (…) for payment,

decides:

that the group consists of: [data of the group members].

1. A demand for the establishment of a defendant’s liability combined with a demand for the establishment that in relation to each member of the group circumstances mentioned in Article 446.3 of the Civil Code occurred, i.e. deterioration in the living standard after the death of a relative, is a claim which does not meet the homogeneity criterion.