Decision of the Regional Court in Krakow 1st Civil Division, of 26th April 2012
I C 1419/10

1. Modification of the statement of claims consisting in bringing forth a new claim in place of the primary one contains a tacit withdrawal of the primary claim. Lodging by the claimant a demand for establishment of liability does not constitute a limitation of the primary demand for payment, but its modification. Both demands are of a spontaneous nature, they are different in terms of content, and they intend to achieve different goals.
2. In assumption, the demand for establishment of liability in cases where future group members will be pursuing payment from the defendant should be brought forth when the pecuniary claims of group members are unfit to be standardised in terms of value due to diversification of circumstances pertaining to individual members of the group. Difficulties with standardisation of pecuniary claims of individual group members in the frames of the original action for payment persuaded the claimant to modify the statement of claims for establishment. The best moment for the claimant to perform such a modification is the stage of assessing admissibility of examination of the case in group proceedings. There are no legal provisions limiting admissibility of performance of modification depending on the stage of the proceedings in the first instance, also in group proceedings.
3. After modification of the statement of claims, group members pursue their claims in the same in generic terms form of legal protection – for establishment – therefore the claims are homogenous in the meaning of Article 1 section 1 of the Act (Polish Act on pursuing claims in group proceedings). It is only worth highlighting that in Article 1 section 1 the Act uses the claim in the procedural sense.
4. The event being the source of the claim in the case of each member of the group is the same – it is the above-described tort [perpetrated by] the defendants, what is more – a complex tort. Yet, the requirement of the same or equal factual basis does not mean the requirement for all elements of the factual grounds in the case of each of the claims to be identical or equal. Existence of one element shared in the scope of factual circumstances constituting the basis of the group members’ claims, i.e. a damage-causing event, is sufficient.

The decision was partially reversed by decision of the Court of Appeals in Krakow of 17^th September 2012, file ref. no. I ACz 1324/12. Thesis questioned by the Court was marked in italics.