Decision of the Regional Court in Warsaw 25th Civil Division of 11th May 2018
XXV C 461/18

1. Introducing a regulation to group proceedings regarding a deposit to secure the costs of the proceedings should guarantee the defendant a return of the incurred costs by the claimant. Such a regulation guarantees the protection of the defendant’s interest against unfounded statements of claim. Regardless of the optional function of the deposit to secure the costs of the proceedings, this institution constitutes a significant limitation of the claimant’s freedom to start group proceedings. Therefore, the claimant’s obligation to make a deposit to secure the costs of the proceedings should be deemed a factor limiting the possibility of the recourse to pursuing claims in group proceedings.
2. It is the defendant’s duty to indicate and demonstrate the facts which substantiate the need to impose an obligation to make a deposit on the claimant.
3. A motion for the deposit should make plausible that the already initiated legal action is: firstly, obviously unfounded and it is hardly possible that the statement of claims will be accepted i.e. it should be deemed as ‘litigious proceedings’ and secondly, that the lack of the deposit to secure the statement of claim makes the enforcement of the costs of the proceedings from the opposite party difficult or impossible.
4. The fact that the consumer ombudsman’s acts as a claimant does not preclude the possibility to enforce the costs of the proceedings by the opposite party.
5. If the court dismisses a claim and awards the costs of the proceedings from the consumer ombudsman to the defendant, such costs should be deemed as the costs of the legal activity of the consumer ombudsman, including in the budget of poviatthe poviat. Such costs cannot be deemed a contractual obligation incurred by the consumer ombudsman which he would not be poviatliable for without the contract being countersigned by the poviat’s treasurer.

The Regional Court in Warsaw 25^th Civil Division in the following ruling bench:

Presiding Judge:            Anna Pogorzelska, Regional Court Judge

Judges:                            Krystyna Stawecka, Regional Court Judge,

Anna Ogińska-Łągiewka, delegated District Court Judge

having examined on 11^th May 2018 in Warsaw the case in group proceedings filed by the group representative Consumer Ombudsman in Poviat (…) against (…) S.A. with its registered office in W. for payment regarding the motion to obligate the claimant to make a deposit to secure the costs of the proceedings

hereby decides:

to dismiss the motion.