Decision of the Regional Court in Łódź 1st Civil Division of 19th December 2016
I C 519/16
- The case may be examined in group proceedings if the following premises are fulfilled: at least 10 people pursuing one homogenous claim based on the same or similar factual basis and alternative inclusion of the object of the proceedings within the following categories: claims for the protection of consumers or claims for damage caused by hazardous products or claims for damage caused by a tort, save for claims for the protection of personal rights (Article 1 of Act on Pursuing Claims in Group Proceedings).
- ’The same‘ factual basis of pursued claims exists when factual circumstances are identical and a legal protection is sought by participants of one event, thus a bond based on the unity of the damage-causing event occurs. Similar‘ (equal) factual basis means the similarity of particular established facts.
- The essence of group proceedings is the commonality of demand which must be typical (common) for all claims and is based on the identical factual situation of the group members. non-significant dissimilarities may exist among individual grounds of the claims , but the significant factual circumstances should substantiate a demand which is common for all claims.
- The literal wording of the provision indicates that for ascertaining the admissibility of the group proceedings it is sufficient if at least 10 people pursue homogenous claims based on the same factual basis. Whereas, ascertaining whether all persons who submitted declarations on joining the group may be its members – is the next stage of group proceedings, which pursuant to Article 17 of the Act on Pursuing Claims in Group Proceedings ends with a decision on the group composition.
- The term ’claim’ within the meaning of Article 1.1 of the Act on Pursuing Claims in Group Proceedings (unlike Article 2 of the Act on Pursuing Claims in Group Proceedings) means the demand of the statement of claims. In consequence, the group proceedings are not limited only to action for performance.
- The important dissimilarity between filing an action for establishment of liability under Article 189 CCP and an action under Article 2.3 of the Act on Pursuing Claims in Group Proceedings ’for establishment of the defendant’s liability‘ is that the claimant is obligated to prove the legal interest if he pursues the claim under Article 189 CCP.
- The defendant who files a motion for obligating the claimant to make a deposit to secure the costs of the proceedings, should make plausible, firstly, that the pursued claims against him is obviously unfounded or that the acceptance of the statement of claims is unlikely, therefore has the characteristics of litigiousness. Secondly, the defendant should make plausible that the lack of the deposit to secure the future claim for reimbursement of costs of the proceedings will make an execution of the costs from the opposite party impossible or significantly more difficult.
The Regional Court in Łódź 1st Civil Division in the following ruling bench:
Katarzyna Kamińska-Krawczyk, Regional Court Judge
Marzena Kluba, Regional Court Judge
Anna Jóźwiak, Regional Court Judge
having examined on 19th December 2016 in Łódź at the hearing the group action filed by the Municipal Consumer Ombudsman in W. against (…) with its registered office in W. for establishment of the defendant’s liability,
concerning: the admissibility of the group proceedings and defendant’s application to obligate the claimant to pay a deposit to secure the costs of the proceedings,
decides to:
- examine the case in group proceedings;
- dismiss the defendant’s motion to obligate the claimant to pay the deposit to secure the costs of the proceedings.
