1. The term “claim” used in the Act (Polish Act on pursuing claims in group proceedings) is used in the meaning of the procedural request (demand). “Claim asserted in a court proceedings” in other words refers to the subject of the proceedings: for establishment, adjudication, shaping the legal relationship or right. Its specification is connected with the division of actions into, respectively: action for the establishment of the existence or the non-existence of the legal relationship or law, action for adjudication of the consideration, on the shaping of a legal relationship or right. The claimant (in the statement of claims) and the group members (in declarations on joining the group) filed pecuniary claims (compensatory claims for the payment of a specified amount reflecting the value of the damage incurred) towards the defendants. In the case of such claims, as indicated above, demanding solely the establishment of the defendant’s liability, which the claimant and the group members are claiming for, is admissible. Hence the premise of pursuing claims of one type is fulfilled.

1. The deposit is to serve securing the enforcement of the judgement in the scope of the costs of proceedings which may be awarded to the defendant. The costs of proceedings are costs necessary for the purposeful pursuit of one’s rights and a purposeful defense, awarded to the party winning the case from the opponent (Article 98 of the CCP – Polish Civil Procedural Code). These are therefore not the costs awarded to the defendant as the court costs (i.e. fees and expenses).

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

The Chairman: Agnieszka Rafałko, Regional Court Judge

The Judges: Joanna Zielińska, Regional Court Judge; Andrzej Lipiński, District Court Judge (delegated)

having examined on 28^th February 2013 in W. the case filed by the Municipal Consumer Ombudsman of the Municipal Office of the Capital City, the representative of the group (…) against the Housing Association (…) with its registered office in W. for payment

decides to:

hear the case in group proceedings.

1. A claim for consumer protection is every claim that a consumer is entitled to against an entrepreneur, resulting from the legal transaction made between the consumer and the entrepreneur and is not limited only to claims based on specific acts within the scope of consumer law. There is no basis to accept that the aim of the legislator was to differentiate the status of consumers into those who can seek the protection of their claims in group proceedings and those persons who, despite the status of consumer, have to pursue their claims within the regular (ordinary) proceedings.
2. It is commonly accepted, both in the case law as well as in the doctrine, that the status of the given person as a consumer should be assessed at the moment of performance of the legal action. The later changes on the allocation of the purchased good or service should not lead to changes of the once accepted assessment.
3. Even in assuming the allegation of the defendant that Article 5 of the Act on Pursuing Claims in Group Proceedings) regards to the whole of the remuneration, and not only to the part connected with the result of the proceedings, then there is still no basis to state that the violation of this provision results in the invalidity of the entire agreement with the attorney. The legislator did not reserve such a sanction.
4. As opposed to Article 1119 of the Code of Civil Procedure, in Article 8 of the Act, the legislator indicated that the court may obligate the claimant to submit a deposit. Hence not in every case of filing a motion by the defendant a deposit should be submitted. Therefore, it was necessary to consider whether in the present case exists the risk that in the event of the defendant winning the case, he could have problems with enforcing the awarded costs of the proceedings.

The Regional Court in Warsaw, 16^th Commercial Division in the following ruling bench:

Presiding Judge:       Maria Ziet- Zawadzka, Regional Court Judge

Judges:                        Marian Kociołek, Regional Court Judge, Beata Dzierżko, District Court Judge

having examined on 14^th February 2013 in Warsaw at the hearing in camera the case filed by group representative (…) Ltd in W. against (…) Society (…) joint stock company in W. for payment

The order was reversed by the decision of the Court of Appeals in Gdańsk 1^st Civil Division dated 24^th April 2013, case file no. I ACz 300/13.

Order of the Regional Court in Gdańsk 9^th Commercial Division, in the following ruling bench:

Presiding Judge:            Dariusz Kardaś,  Regional Court Judge

having examined on 30^th January 2013 in Gdańsk at the hearing in camera the case filed by group representative (…) against (…) for payment,

orders to:

return the statement of claim.

1. It is assumed that the notion of a “claim” – used in Article 1 section 1 of the Act on pursuing claims in group proceedings – is used in the sense of the procedural claim. A procedural claim is a defendant’s statement, detached from substantive law, on the existence of some entitlement, submitted to the court with the view of granting it legal protection. Defendant’s statement, defined in the statement of claims, takes on the form of a demand for the award, for the establishment, and for the shaping of a right or legal relationship. Filing a motion for the granting of legal protection in the same form by all parties covered by the group proceedings is a decisive precondition for the admissibility of group proceedings. Group members, therefore, have to raise the same demand – for the adjudication, for the declaration of the existence or non-existence of a specific right or legal relationship, for the shaping of a legal relationship or a right. Pecuniary claims are homogenous claims, while non-pecuniary claims have this attribute in the case of a homogenous behaviour of the defendant, e.g. cessation of engaging in a specific dishonest market practice.

1. According to Article 1 section 1 of the Act (Polish Act on pursuing claims in group proceedings), the claims pursued in group proceedings should be of one type, which means, that the members of the group are pursuing granting of legal protection in the same form – they have to submit the same request (demand).

The decision has been reversed by the decision of the Court of Appeals in Warsaw, 6th Civil Division, of 26th march 2013, VI ACz 540/13.

The Regional Court in Warsaw XXV Civil Division in the following ruling bench:

Presiding Judge:            Anna Pogorzelska, Regional Court Judge

Judges:                             Hanna Jaworska, Regional Court Judge; Krystyna Stawecka, Regional Court Judge

having examined on 10th January 2013 in Warsaw at the hearing in camera of the group action filed by W. L. – group representative against A. K. for payment, following the group representative’s motion for security deposit,

The Regional Court in Opole 1^st Civil Division with the following ruling bench:

Presiding Judge: Magdalena Domińczyk-Trzciańska, Regional Court Judge

Judges: Ryszard Kądziela, Regional Court Judge; Beata Hetmańczyk, Regional Court Judge

having examined on 7^th January 2013 in Opole at the hearing in camera the case filed by J. M. – the group representative against (…) Spółka z o.o. in O. for payment,