Judgment of the District Court of Warsaw, III Civil Division, dated April 26, 2019
III C 798/15
- In order to qualify claims for class proceedings, they must be averaged, which the plaintiffs did both in the lawsuit and its modification. This is because the lack of such averaging of claims would result in undermining the point of group proceedings at all, since the court would have to examine in detail and individually the case of each injured party in order to determine the actual value of his claim, which it can just as well do in individual proceedings. On the other hand, one of the benefits of group proceedings is that the court examines the circumstances of the case collectively with respect to all members of the group, so that the proceedings can be conducted more quickly and efficiently.
- The case law is unanimous in emphasizing that damage in the form of lost benefits must be demonstrated by the injured party with such a high degree of probability that, in light of life experience, justifies the assumption that the loss of expected benefits actually occurred. From damage in the form of lucrum cessans, it is necessary to distinguish the concept of potential damage, by which is meant “the loss of the chance to obtain a certain material benefit.” The difference is expressed in the fact that in the case of lucrum cessans the hypothesis of loss of benefit borders on certainty, while in the case of eventual damage the probability of loss of benefit is much lower. It is assumed that the eventual damage is not compensable.
- The construction of the provisions on abusive clauses does not allow the performance of the so-called reduction that maintains the effectiveness. Therefore, it is not possible to correct an abusive contractual provision, that is, to change its content in such a way that the provision no longer constitutes a prohibited provision.
- The mere fact that the claim is asserted in a group proceeding does not exempt from proving the fact and amount of damage suffered individually with respect to each member of the groups and subgroups. In fact, such a basis (…) can not be used as Article 2(1) of the U.d.p.g. The disposition of this provision is addressed to the plaintiff and relates to the manner in which the claim is formulated, not to the court obliging it to “lump sum” amounts awarded. Moreover, any “lump-sum” compensation would be tantamount to the introduction of a contractual penalty unknown in the legal relationship between the parties. The allowance of the claims of the individual members of the class was therefore conditional on proving in the course of the proceedings that they had actually suffered damages, in an amount at least equivalent to the damages claimed in the proceedings. There is no room here for any “estimated” amounts to make up for the damage they suffered.
District Court in Warsaw, III Civil Division, composed of:
Presiding Judge: SSO Grzegorz Chmiel
Judges: SSO Joanna Bitner, SSO Ewa Jończyk
after hearing on April 4, 2019 in Warsaw in group proceedings the case of the claim of K. K. (1) – the representative of the group and group participants:
(…)
against the Housing Cooperative (…) with its seat in W. for payment:
- dismisses the claim in its entirety;
- awards the amount of PLN 21,617 (twenty-one thousand six hundred and seventeen) against K. K. (1) in favor of the defendant Housing Cooperative (…) with its seat in W. as reimbursement of legal costs.
