Judgement of the Court of Appeals in ‎‎Łódź 1st Civil Division of 30th April 2014
I ACa 1209/13

The judgement was reversed by the judgement of Supreme Court of 14^th May 2015, file ref. no. II CSK 768/14.

1. The group representative is a key figure in the class action. This is the person who instigates the proceedings on his own behalf as well as on behalf of all of the members of the group, negotiates and concludes an agreement on behalf of the group members with a professional representative (attorney) and grants him power of attorney. In cases regarding non-pecuniary claims, even the enforcement of the awarded claims is initiated for the first 6 months only at the motion of the group representative.
2. In the group proceedings, the group members – persons directly interested in the outcome of the case – are deprived of all entitlements traditionally granted to the parties to the proceedings. These persons, when joining the group, entrust their entitlements to the representative and are bound by the effect of his actions. The group members take the stance relevant for the party in the material sense and do not participate in the proceedings on terms appropriate for a multi-entity procedural party.
3. The group representative has the sole capacity to act on his behalf but in his own name, similarly as upon the declaration of bankruptcy, the court receiver or administrator manages the bankrupt estate. The substitution of the party to an action is of an absolute nature. A member of the group cannot “accede” the case in the capacity of a claimant, thus gaining in the litigation a position of a party in the procedural sense. In the proceedings, the members of the group are entitled solely to “incidental rights”, specifically to give testimony in the capacity of a party, conduct the enforcement of pecuniary claims awarded to the benefit of a group member, and to submit a motion on the granting of an enforcement clause and conducting the enforcement of the non-pecuniary performance in the event of the representative’s passiveness. Within the framework of the said “incidental right”, the act does not grant the members of the group a special status in the scope of the entitlements to seek the award, on their behalf, of the return of the costs of group proceedings. For the same reasons the legislator also does not foresee the possibility of encumbering the individual members of the group with the costs of the proceedings.
4. It is inadmissible for group members to submit procedural letters (pleadings) in group proceedings, which excludes treating the individual group members as participants to the proceedings in the meaning of Article 7 section 1 of the Act on Court Fees in Civil Cases. The group representative is obligated to pay the claimant’s deposit under terms and conditions indicated in Article 8 in the Act on pursuing claims in group proceedings. The financing of the court costs, similarly as the attorney’s success fee (Article 5 of the Act on pursuing claims in group proceedings), in the course of the group proceedings remains a domain to be agreed upon within the group. It is therefore obvious, that the group members can incur expenses for this purpose, however, the Act does not interfere with the group’s internal relations within this scope.
5. The group members’ arrangements regarding the obligation to participate in the costs of the group proceedings do not impact the amounts that are subject to reimbursement, by virtue of the above cited provision regarding the costs of the proceedings. Specifically in relation to the success fee, being a solution foreseen in the Polish civil procedure solely in the case of group proceedings, considering the lack of a separate regulation, there are no grounds to accept that this amount due falls within the category of “essential trial costs” as referred to in Article 98 para 3 of the CCP (Polish Code of Civil Procedure). Along the lines of the cited provision, essential proceedings costs include attorney’s remuneration, however, in an amount not exceeding the fees indicated in separate provisions. Of course in the case of verdicts establishing liability, in terms of principle, the issue of the success fee does not occur, however, it was cited to support the stance that in encumbering the defendant with the costs of the trial in cases examined is group proceedings, the court should rule in this matter according to the prescribed standards, hence in accordance with Article 98 para 3 of the CCP applied directly.