Decision of the Court of Appeals in Warsaw 5th Civil Division of 24th April 2019
V ACz 324/19
- Conducting of business or professional activity by natural persons does not mean that each legal act undertaken by these persons has a close and direct relation with this activity. The rebuttable presumption of such relation may be accepted solely for actions performed within the scope of the object of the business or professional activity. Therefore, a natural person conducting business activity may perform legal acts as a consumer.
Decision of the Regional Court in Katowice 1st Civil Division of 4th April 2019
I C 998/18
- The requirement of the same or similar factual basis means that the factual basis of the claim need not consist of identical circumstances but their significant similarity is sufficient.
- Admittedly, the Act on Pursuing Claims in Group Proceedings does not set forth the course and initiative of the establishment of a subgroup, but it is assumed that the decision to establish a subgroup is made by a group representative, who bases on assessment of the claims amount notified by the persons joining the group. Obtaining a group member’s consent to assign them to a particular subgroup (i.e. to standardization of their claims in the subgroup) is not necessary. However, a contract concluded by the group representative and group members may stipulate different rules of creating subgroups, including, in particular, the group representative’s obligation to obtain group members’ prior consent to standardize the amount of their claims and decide which subgroup they belong to.
- The court does not participate in the process of creating particular subgroups and cannot specify them, change their numerosity, or influence on their composition. This is because, the court ex officio does not interfere with either the quality or the amount of the claims pursued by the members of the group proceedings – in this respect the principle that the parties delimit the subject matter of the proceedings, set forth in Article 321 of Polish Code of Civil Procedure in connection with Article 24.1 of Act on Pursuing Claims in Group Proceedings, applies.
- Joining a specified subgroup should be expressly confirmed by a group member, so that a group representative and a court have no doubts which subgroup the group member joined and what kind of standardization is covered by their consent. The confirmation may be expressed in any form (also in form of an oral declaration addressed to a group representative) and need not to be submitted to the court.
- The view that spouses should be treated as a two-person subgroup, in which each spouse claims 50% of the value of the jointly pursued claim, is not correct, because the claim belonging to joint co-ownership is indivisible. However, it is correct that one spouse is a group member and acts in the common interest of both of them, with the consent of the second, pursuing a claim that both spouses are entitled to. Then, the spouses’ claim would be standardized with the claim of another group or subgroup member.
Decision of the Court of Appeals in Warsaw 1st Civil Division of 20th March 2019
I ACz 43/19
- The declaration on joining the group is not a procedural letter and the representative of the group is not a procedural body, therefore the procedure for remedying formal irregularities in a procedural letter referred to in Article 130 CCP may not be applied to the declaration on joining the group.
- The internal relations between the group and the representative are governed by Article 16(2) of the Act on Pursuing Claims in Group Proceedings, under which the claimant may obligate a group member to submit additional evidence and explanations within a specified period of time and only this provision may provide a legal basis for remedying formal defects in the declaration on joining the group, including such defects as the lack of signature of the authorised person.
- It is admissible to show by any means of evidence that they belong to a group of persons who have reported such an accession, even if with defects in the form of the declaration. The group representative may also demonstrate compliance with the deadline for submission of the declaration using a logbook or attached e-mails. However, it is important for the declaration on joining a group of persons pursuing claims in group proceedings to express a firm and unambiguous willingness to participate in the proceedings and not merely a potential interest in joining the group in the future.
- A declaration made orally in the course of a telephone call may not be repaired in terms of form.
Decision of the Court of Appeals in Warsaw 6th Civil Division of 14th March 2019
VI ACz 785/18
Court of Appeals in Warsaw 6th Civil Division with the following ruling bench:
Presiding Judge: Grażyna Kramarska, Court of Appeals Judge (rapporteur)
Judges: Teresa Mróz, Court of Appeals Judge;
Ksenia Sobolewska-Filcek, Court of Appeals Judge
having examined on 14th March 2019 in Warsaw at the hearing of camera the case filed by M. – the District Consumer Ombudsman in P., acting as the group representative against (…) Bank S.A. in W. for establishment with the participation of the side intervener S. J.
Judgment of the Supreme Court of 31st January 2019
V CSK 596/17
- One must find that in a case for monetary claims resulting from a tort, an action from Article 2 (3) of the Act on Pursuing Claims in Group Proceedings is admissible without the need to determine that damage has been caused to each member of the group if the circumstances of the damage are varied in a degree rendering their assessment in a class action inexpedient. The likelihood that such injury actually took place is entirely sufficient. Moreover, there is no reason for a court in group proceedings to rule firmly that damage has occurred in the case of each member of the group if it is possible and expedient to do so in the context of group proceedings. The court may, however, omit this with the result that the examination of whether and what damage was caused to individual members of the group will take place in individual proceedings if they are initiated. This also means, which needs to be emphasised, that the court adjudicating in the proceedings [initiated] by a statement of claims of a group member, despite being bound by the prejudication obtained under Article 2 (3) of the Act on Pursuing Claims in Group Proceedings (Article 365 CCP in conjunction with Article 21 (3) and Article 24 (1) of the Act on Pursuing Claims in Group Proceedings), may dismiss the action if it ultimately turns out that the damage suitable to be repaired did not occur.
- Within that construction, it is the court conducting group proceedings and the court conducting the subsequent individual proceedings which must assess the circumstances justifying the award of a specific sum of money to a particular person. The limits of the jurisdiction of both courts should be set in a flexible manner which would allow for the widest possible opening of group proceedings, the use of its potential, and obtaining the economic benefits associated with the joint assessment of identical factual and legal issues common to all claims pursued.
- The establishment of the defendant’s liability while simultaneously leaving the decision on the existence and amount of damage to the court conducting individual proceedings should be treated as a statement of the entire demand of the statement of claims in group proceedings (full judgment).
Decision of the Regional Court in Warsaw 1st Civil Division of 14th January 2019
I C 1281/15
- A declaration on joining a group may not be made by a group member directly to the court with the omission of the group representative.
- The fact that a credit instalment is repaid directly in CHF currency cannot affect the possibility of participation in the proceedings by persons who repaid in this way. This is because the factual basis of their claims is similar to that of the other members of the group, and the fact that repayment is made directly in CHF may be relevant only to the amount of the claim for payment of the amounts charged as an undue pecuniary performance in connection with the bank’s use of the indexation clauses formulated unfairly in the credit agreements.
- It is impossible to argue that a demand based on Article 189 CCP may not be made by each of the co-borrowers, regardless of the relationship between them and the other or the subsequent debtor under the credit agreement.
Decision of the Court of Appeals in Warsaw 6th Civil Division of 18th December 2018
VI ACz 1007/18
- The decision on the announcement on commencement of the group proceedings is not mentioned in Article 394 (1) CCP. Undoubtedly, it is also not a decision terminating the proceedings in the case, nor is it a decision which a complaint can be lodged against on the basis of the regulations contained in the Act on Pursuing Claims in Group Proceedings. For this reason, it should be found that no complaint may be lodged against such a decision.
Decision of the Court of Appeals in Warsaw 6th Civil Division of 18th December 2018
VI ACz 1008/18
The Court of Appeals in Warsaw 6th Civil Division with the following ruling bench:
Presiding Judge: Agata Zając, Court of Appeals Judge
Judges: Małgorzata Borkowska, Court of Appeals Judge;
Grzegorz Tyliński, Regional Court Judge (delegated; rapporteur)
having examined on 18th December 2018 in Warsaw at the hearing in camera the case filed by the District Consumer Ombudsman in the Poviat of (…) – the group representative against (…) Towarzystwo Ubezpieczeń (…) S.A. with its registered office in W. for payment
Decision of the Regional Court in Warsaw 2nd Civil Division of 17th December 2018
II C 222/16
The Regional Court in Warsaw 2nd Civil Division with the following ruling bench:
Presiding Judge: Marcin Polakowski, Regional Court Judge (rapporteur)
Judges: Magdalena Antosiewicz, Regional Court Judge; Sylwia Urbańska, Regional Court Judge
having examined on 10th December 2018 in Warsaw the case filed by the group representative – the Municipal Consumer Ombudsman in S. acting on behalf of [data of 41 persons] against (…) SA with its registered office in W. for establishment