Case law > Decision of the Regional Court in Warsaw, 4th Civil Division, dated 23rd April 2019

Decision of the Regional Court in Warsaw, 4th Civil Division, dated 23rd April 2019
IV C 195/18

The Regional Court in Warsaw, 4th Civil Division, composed of:

Presiding Judge:            Andrzej Sterkowicz, Regional Court Judge

Judges:                            Karol Smaga, Regional Court Judge;

Radosław Tukaj, District Court Judge (delegated)

having examined on 23rd April 2019, in Warsaw, at a session in camera, the group action brought by M. S. – representative of the group – against the State Treasury – the Prosecutor General, the Regional Prosecutor in Gdańsk, the District Prosecutor in Gdańsk – Wrzeszcz in Gdańsk for payment,

decided to:

order the announcement of the initiation of group proceedings in this case in the daily newspaper “(…)” with the following content:

“Before the Regional Court in Warsaw, 4th Civil Division, in case no. IV C 195/18, group proceedings were initiated pursuant to the Act of 17th December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws of 2018, item 573) on the basis of a claim brought by M. S. as the representative of the group against the State Treasury – the Prosecutor General, the Regional Prosecutor in Gdańsk, and the District Prosecutor for Gdańsk-Wrzeszcz in Gdańsk.

  1. S., as the representative of the group, requested that, pursuant to Article 417 § 1 of the Civil Code, the defendant be ordered to pay to the members of the group specific amounts of money together with statutory interest from the date of filing the lawsuit until the date of payment, as compensation for damage caused to the property of the group members as a result of the unlawful failure of the District Prosecutor of Gdańsk-Wrzeszcz in Gdańsk, the Regional Prosecutor in Gdańsk, and the Prosecutor General to bring charges against the members of the management board of the company under the name (…) LLC with its registered office in Gdańsk until 17th August 2012, which, in the plaintiff’s opinion, resulted in the members of the group concluding agreements with the above-mentioned company and transferring funds to it, which were then lost as a result of the company’s insolvency.

The claimant indicates that on 21st December 2009, the District Prosecutor’s Office in Gdańsk-Oliwa received a notification from the Financial Supervision Authority of a reasonable suspicion that the president of the management board of company A. G. had committed a crime under Article 171 § 1 of the Banking Law, i.e. conducting banking activities without the appropriate license. This notification was then forwarded, in accordance with jurisdiction, to the District Prosecutor’s Office in Gdańsk-Wrzeszcz. After conducting an investigation pursuant to Article 307 of the Code of Criminal Procedure, on 22nd January 2010, the prosecutor issued a decision refusing to initiate an investigation due to the lack of determination of marks of a prohibited act. As a result of a complaint lodged by the Polish Financial Supervision Authority, the District Court for Gdańsk-Południe overturned the decision to refuse to initiate an investigation. After examining additional evidence, on 18th August 2010, the prosecutor of the District Prosecutor’s Office in Gdańsk-Wrzeszcz again terminated the investigation due to the absence of marks of a prohibited act. This decision was also appealed by the Polish Financial Supervision Authority, and the District Court of Gdańsk-Południe overturned it in its decision of 16th December 2010. Referring the case back to the prosecutor for reconsideration, it stated that the actions recommended to him had been carried out incorrectly. Upon re-examining the case, the prosecutor decided to consult a certified auditor in order to assess A. G.’s activities from the point of view of their compliance with applicable law. Due to the prolonged time needed to prepare the opinion, the prosecutor stayed the proceedings on 31st May 2011. After the Regional Prosecutor in Gdańsk deemed the above decision to be unfounded, the Prosecutor of the Gdańsk-Wrzeszcz District Prosecutor’s Office resumed the stayed proceedings on 4th April 2012. The Regional Prosecutor’s Office in Gdańsk, despite being aware of the improper conduct of the proceedings to date, did not subject the case to superior official supervision. Finally, on 16th August 2012, i.e. more than two and a half years after the Financial Supervision Authority filed its notification, the first charges were presented to the president of the management board of the company A. G.

According to the group representative, as a result of the above-described omissions and erroneous decisions, the group members suffered damage. Despite the existence of clear grounds and knowledge allowing for charges to be brought against the members of the management board of A. G., this was not done, which in turn allowed the company to continue its operations to the detriment of the group members.

Any person whose claim may be covered by this group action may join this case by submitting a written statement of joining the group within one month from the date of publication of this announcement and sending it to the group representative – M. S. (address for service: attorney at law A. S., B. & M. LP, R. (…) 1, (…)-(…) W.). Joining the group after the deadline set by the court is not allowed. In the statement of joining the group, the person should specify their claim and indicate the circumstances justifying the claim, as well as their membership in the group and present evidence.

Submitting a statement of joining the group is tantamount to consenting to M. S. acting as the group’s representative and to the rules of remuneration of the plaintiff’s attorney.

The rules for remuneration of the plaintiff’s representative have been established as follows:

  1. persons who join the group after the date of filing the lawsuit with the court will be required to pay the law firm a fixed fee for proceedings before the court of first instance in the amount of PLN 4,000 + VAT;
  2. the law firm’s remuneration for representing the group in proceedings before the court of second instance is PLN 30,000 + VAT, regardless of the size of the group;
  3. the law firm’s fee for representing the group before the Supreme Court is PLN 40,000 + VAT regardless of the size of the group, if the appeal in cassation is not accepted for consideration, and if the appeal in cassation is accepted for consideration PLN 65,000 + VAT (if the appeal in cassation is not accepted for consideration, the difference will be refunded to the representative by the law firm);
  4. the law firm’s remuneration for representing the group before the European Court of Human Rights in S., regardless of the size of the group, is PLN 50,000 + VAT;
  5. the success fee is 8% of the amount recovered + VAT from each member of the group;
  6. the portion of the law firm’s fixed remuneration due from a given member of the group for proceedings before the court of first instance must be paid into the representative’s account before the date of delivery of the statement of joining the group; the above remuneration is due to the law firm even if the member of the group will not be covered by the court’s decision on joining the group; failure to pay the fee will result in the entity not being included in the list of group members;
  7. if more than one person is a party to the agreement concluded with A. G., they shall make only one payment for the law firm’s remuneration.

 

A final judgment shall have effect on all members of the group, i.e. persons who, before the deadline specified in this announcement, will send a signed statement of joining the group and will be included in the court’s decision determining the composition of the group.”