Decision of the Regional Court in Warsaw 24th Civil Division of 17th September 2014
XXIV C 554/14

1. On the grounds of the Act on Pursuing Claims in Group Proceedings, it is of no significance whatsoever whether claims arise from the same or from different legal relationships. The provision of Article 1.1 of the Act provides only that claims should be based on the same or equal (similar) factual basis. In the case a diversification of the situation of the members of the group undoubtedly occurs in the scope of such circumstances indicated by the defendant as: different content and terms of insurance agreements, application of various standard contract terms, participation of various agents and persons performing agency activities, or various manners of realisation of substantial information obligations by parties brokering the conclusion of agreements. These circumstances may not, however, influence the assessment of homogeneity of the factual basis of the action. It should be emphasised that in the case being heard, the issue is the agreements concluded with the use of the same standard terms including a contentious clause concerning the insurer’s right to collect glaringly extortionate fees constituting the entirety or a part of the policy account value in the event of termination of the insurance agreement. In truth, each of the agreements included an identical provision specifying the value and the manner of calculating the policy redemption fee. Also, the circumstance that each member of the group could differently understand the meaning of the contentious clause is of no significance for the identicalness of the factual basis of the action.
2. The consumer ombudsman was awarded the capacity to be a party in group proceedings directly in Article 4.1 in conjunction with Article 2.2 of the Act on Pursuing Claims in Group Proceedings, i.e. in consumer protection cases. The content of the quoted provisions corresponds in this scope with the content of Article 42.2 of the Act on Competition and Consumer Protection and Article 63³ of the Code of Civil Procedure, under which in consumer protection cases, the district (municipal) consumer ombudsman may initiate actions on behalf of citizens. It is precisely the provisions of the procedural law nature that are decisive for the consumer ombudsman’s capacity to be a party in court proceedings and its position in litigation. The consumer ombudsman’s capacity to be a party in court proceedings is independent of the territorial scope of his or her operation. Group members may entrust the function of the group representative to a consumer ombudsman from any city or district in the territory of the state.
3. An agreement concluded by a group representative – a district consumer ombudsman – with an attorney does not create any financial obligations on the part of the ombudsman or a local territorial authority that employs him or her. Hence, the conclusion of such an agreement did not require a separate consent on the part of the district treasurer or a person authorised thereby.
4. The deposit is to serve the purpose of securing the defendant’s potential claim for the reimbursement of the costs of proceedings, in the event of difficulties in enforcing them from the group’s representative. The defendant bears the burden of proof that the non-establishment of a deposit for securing future claim for awarding the reimbursement of the costs of proceedings will render the execution thereof impossible or create substantial difficulties in the execution thereof.