Judgement of the Regional Court in Warsaw, 3rd Civil Division of 2nd March 2016

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  1. Article 13 (1) of the Act on Pursuing Claims in Group Proceedings does not in any way pertain to the manner of calculating interest rates; it only institutes the lis pendens effect between a group member and the defendant.
  2. Insofar as he introduction into the contract template of a clause providing for a valorization of the price of residential premises is to be deemed inadmissible in itself, nevertheless, it is the lack of a clause providing for a consumer’s right to withdraw from the contract in such a case that makes the abusive clause as a whole. Even a small several percent raise in prices or the building contribution may make it impossible for the consumer to acquire the residential premises being the object of the Financing Agreement.
  3. The sole fact of payment of the valorization amount does not constitute impoverishment in a situation where it is further counted as a due performance, namely the future building contribution. Hence, it is legitimate to recognize the payments on those grounds to have been an advanced delivery of a due performance, which under Article 411 [4] CCP – excludes the possibility of demanding the payment return.

The Regional Court in Warsaw, 3rd Civil Division in the following ruling bench:

Presiding Judge:         Mariusz Solka, Regional Court Judge (rapporteur)

Judges:                         Agnieszka Rafałko, Regional Court Judge, Ewa Jończyk, Regional Court Judge

Having examined on 25th February 2016 in Warsaw the case filed by the Municipal Consumer Ombudsman (…) – the representative of the group and its members:

  1. Subgroup no. 1 – [2 members];
  2. Subgroup no. 2 – [6 members];
  3. Subgroup no. 3 – [3 members];
  4. Subgroup no. 4 – [6 members];
  5. Subgroup no. 5 – [6 members];
  6. Subgroup no. 6 – [2 members];
  7. Subgroup no. 7 – [4 members];
  8. Subgroup no. 8 – [3 members];
  9. Subgroup no. 9 – [2 members];
  10. Subgroup no. 10 – [4 members];

against the Defendant – the Housing Association in (…) for payment

decides

1. to award from the Defendant as penal interest:

  1. (…) the amount of PLN 7,682,99 PLN (seven thousand six hundred eighty two zloty ninety nine grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  2. (…) the amount of PLN 1,958.39 PLN (one thousand nine hundred fifty eight zloty thirty nine grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  3. (…) the amount of PLN 151.92 (one hundred and fifty one zloty ninety two grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of paymentalong with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  4. (…) the amount of PLN 5,254.16 PLN (five thousand two hundred fifty four zloty sixteen grosz) along with the statutory interest on delay counted as of 8th August 2012 until the day of payment,
  5. (…) the amount of PLN 2,056.65 (two thousand fifty six zlotysixty five grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  6. (…) the amount of PLN 1,408.07 (one thousand four hundred eight zloty seven grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of paymentalong with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  7. (…) the amount of PLN 6,471.80 (six thousand four hundred seventy one zloty eighty grosz) along with the statutory interest on delay counted as of 8th August 2012 until the day of payment,
  8. (…) the amount of PLN 1,381.05 (one thousand three hundred eighty one zloty five groszgrosz) along with the statutory interest on delay counted as of 8th August 2012 until the day of payment,
  9. (…) the amount of PLN 708.76 (seven hundred eight zloty seventy six grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  10. (…) the amount of PLN 85.42 (eighty five zloty fourty two grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  11. (…) the amount of 85,41 PLN (eighty five zloty fourty one grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  12. (…) the amount of PLN 4,950.01 (four thousand nine hundred fifty zloty one grosz) along with the statutory interest on delay counted as of 8th August 2012 until the day of payment,
  13. (…) the amount of 1.951,13 PLN (one thousand nine hundred fifty one zloty thirteen grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  14. (…) the amount of PLN 216.39 (two hundred sixteen zloty thirty nine grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  15. (…) the amount of 2.653,26 PLN (two thousand six hundred fifty three zloty twenty six grosz) along with the statutory interest on delay counted as of 8th August 2012 until the day of payment,
  16. (…) the amount of PLN 3,855.62 (three thousand eight hundred fifty five zloty sixty two grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  17. (…) the amount of PLN 24.57 (twenty four zloty fifty seven grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  18. (…) the amount of PLN 12.28 (twelve zloty twenty eight grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,
  19. (…) the amount of PLN 12.28 (twelve zloty twenty eight grosz) along with the statutory interest on delay counted as of 7th August 2012 until the day of payment,

2. to dismiss the action in the remaining scope;

3. to establish that the parties to the dispute bear the costs of the proceeding in the following proportion:

  1. the Claimant is to pay 90 (ninety) %;
  2. the Defendant is to pay 10 (ten) %;

and leave the detailed arrangements to the court referendary `s discretion.

Decision of the Regional Court in Warsaw 25th Civil Division of 8th February 2016

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

Presiding Judge: Krystyna Stawecka, Regional Court Judge

Judges: Anna Błażejczyk, Regional Court Judge; Krystyna Dymek, Regional Court Judge

having examined on 8th February 2016 in Warsaw at the hearing in camera the group action filed by J. K. – the group representative against Bank (…) S.A. in W. for payment,

decides to:

  1. order the announcement on the commencement of group proceedings;
  2. establish the following wording of the announcement on commencement of the group proceedings:

’Under the Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws from 2010, No. 7, item 44), group proceedings initiated by J. K. against Bank (…) S.A. in W., case ref. no. XXV C 148/14 were commenced Before the Regional Court in Warsaw 25th Civil Division.

J. K. as the group representative motioned for award of specified amounts of money in favor of each group member. The claims pursued by the group members are claims for compensation arising from tort and the legal basis of the claims is provided by the Article 415 CC, Article 416 CC, and Article 442 CC. The statement of claims indicated that the defendant’s actions may be qualified as a Bank’s tort and/or abetting in causing damage and/or consciously benefitting from the damage caused by another person.

(…)

Each person whose claim may be included within this class action may join the case by submitting a written declaration on joining the group within the non-extendable period of 2 months from the date of notification of the announcement and by serving the declaration on to the group representative – J. K., address for service: Ł. G., attorney-at-law, T. P., legal counsel, and A. K., legal counsel (…) P. G. L. G. sp. k., ul. (…), (…)-(…) K.

After the lapse of the abovementioned deadline, joining the group is inadmissible’.

Decision of the Regional Court in Warsaw 3rd Civil Division of 2nd February 2016

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  1. For assessing whether consumers’ claims are based on a similar factual basis, the potential disposal to other individuals by consumers who previously purchased tickets, is of no significance. This is because all consumers indicated in the statement of claims as buyers of the tickets – parties to an obligational relationship binding them with the defendants, are entitled to the claims for payment on the grounds of previously purchased tickets. The factual basis of pursued claims is therefore similar and it results from a single event, i.e. purchasing of tickets and participation in a sports event organised by the defendant.
  2. The entry in an appropriate register of entrepreneurs is of no significance for assessing whether a given entity conducts a business activity. Neither it is of significance for such an assessment the allocation of income obtained from the above-mentioned activity. The fact that the defendant operates in the legal form of an association does in no way exclude a possibility of conducting a business activity, particularly one that generates profit.

Decision of the Regional Court in Gdańsk 1st Civil Division of 1st December 2015

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  1. The institution of the security for costs of the case in a class action is of a facultative nature and the possibility of obligating the Claimant to secure the costs, within the meaning of Article 8(1) of the Act on Pursuing Claims in Group Proceedings falls within the Court’s competence.
  2. The defendant who files a motion for obligating the claimant to make a deposit to secure the costs of the proceedings, should make plausible, firstly, that the claims pursued against the defendant are obviously unfounded or that the statement of claims is unlikely to be allowed, therefore has the characteristics of litigiousness. Secondly, the defendant should make plausible that the lack of the deposit to secure the future claim for the reimbursement of costs of the proceedings will make the execution of the costs from the adversary party impossible or significantly more difficult.

The Regional Court in Gdańsk 1st Civil Division in the following ruling bench:

Presiding Judge:       Karolina Sarzyńska, Regional Court Judge

Judges:                       Małgorzata Janicka, Regional Court Judge , Krzysztof Koczyk, District Court Judge

having examined on 1st December 2015 in Gdańsk at the hearing in camera the case filed by (…) in Szczecinek acting as a Group Representative against Bank B. S.A. with its registered office in Gdańsk for the establishment on the Defendant’s motion for ordering the Claimant to secure the costs of the litigation

hereby decides to:

dismiss the motion.

Decision of the Regional Court in Warsaw 1st Civil Division of 1st December 2015

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The decision was fully amended by the Decision of the Court of Appeals in Warsaw, 1st Civil Division of 8th April 2016, file ref. no. I ACz 534/16 by accepting the case in group proceedings.

  1. If pecuniary claims are the subject of a dispute, the Act on Pursuing Claims in Group Proceedings allows the possibility of pursuing them in group proceedings, only if for each of the claimants they were standardized on the basis of shared circumstances of the case.

Decision of the Regional Court in Szczecin 1st Civil Division of 23rd October 2015

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  1. Indication of specific allegations pertaining to particular persons would only make it possible to state whether these allegations require taking concrete evidence (taking the situations regulated in Articles 228, 229, 230 and 231 CCP into consideration, in which taking evidence is not required), to determine who the person bearing the burden of proof relating to specific circumstances of the case is (irrespective of the general rule laid down in the Article 16 of the Polish Act on Pursuing Claims in Group Proceedings) and to state what conclusions are to be drawn from a potential lack of such evidence.
  2. Group proceedings lack grounds for a court to allow the motion to address the National Archive for sending over class sections. According to Article 16 of the Act on Pursuing Claims in Group Proceedings, the duty to deliver all the necessary documents rests, with the representative of the group.
  3. The grounds for recognizing the persons designated as group members as the legal successors of the late shareholders are confirmations of the acquisitions of the inheritances and inheritance notarization acts (Article 1025 (1) CC). From the appended confirmation of the acquisition of the inheritance results a legal presumption that the indicated persons are the shareholders’ heirs whose shares are indicated in the class sections of shares (Article 1025 (2) CC).

The Regional Court in Szczecin, 1st Civil Division in the following ruling bench:

Presiding Judge: Wojciech Machnicki, Regional Court Judge (rapporteur)

Judges: Halina Musiał, Regional Court Judge, Tomasz Sobieraj, Regional Court Judge

having examined on 23rd October 2016 in Szczecin at the hearing in camera an action for payment filed by K. P. – the representative of the group in the class action against the State Treasury – the Minister for the State Treasury

decides to:

establish the following composition of the group: [2166 group members].

Decision of the Regional Court in Warsaw 2nd Civil Division of 23rd October 2015

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The decision was reversed by the Court of Appeals in Warsaw 1st Civil Division on 10th March 2016, file ref. no. I ACz 91/16 as follows: the Court decides to hear the case in group proceedings.

  1. Group proceedings procedure was established for cases with significantly approximate factual statuses. The level of similarity should be such that all the circumstances essential for settlement in the case are similar if not outright identical.
  2. In order to provide efficiency of the group proceedings, such proceedings must be based on the similar factual circumstances. This similarity should take into account the possibly identical assessment in context of a settlement as to the merits. Hence, no differences may exist which would expressly differentiate this assessment in reference to each member of the group. This applies to all factual circumstances concretising the hypothesis of the applicable legal norm.
  3. In group proceedings, the court decides on admissibility of the action in the form in which it was brought before the court and he court has no power to modify the statement of claims even if by selection of the particular elements fit to be examined in group proceedings and rejection of the remaining ones. Hence, it is the statement of claims in the form lodged with the court that is assumed to be the object of the assessment, obviously with taking into account actions related to supplementing formal defects.
  4. The group proceedings are a specific kind of civil proceedings. The inadmissibility of group proceedings does not preclude the possibility of pursuing a claim in ordinary civil proceedings. The inadmissibility only signifies an impossibility of hearing a case under provisions of the Act on Pursuing Claims in Group Proceedings while pursuing claims in group proceedings could be more convenient for the parties to the dispute. It, however, does not in any way preclude access to justice or breach the rights stemming from the Constitution or international law.

The Regional Court on Warsaw 2nd Civil Division, in the following ruling bench:

Presiding Judge : Tomasz Wojciechowski, Regional Court Judge (rapporteur)

Judges:                   Sylwia Urbańska, Regional Court Judge; Katarzyna Waseńczuk, Regional Court Judge

having examined on the 9th October 2015 in Warsaw at the hearing the case filed by the Municipal Consumer Ombudsman in the City Hall of the City of S. acting as a group representative of the group consisting of (names of group members) against (…) joint stock company in W. for ascertainment

decides to

  1. reject the statement of claims;
  2. award from the City of S. to (…) joint stock company in W. the amount of PLN 7,217.00 as the return of the cost of the proceedings.

Decision of the Regional Court in Warsaw 21st Labour Division of 21th October 2015

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  1. In the event the amount of the statement of claims of each group member includes both compensation for the lack of valorisation of remuneration by the average salary increase annual rate, and the statutory interest compensated on the day of filing the claim, due for the delay in payment of the basic claim, the claimant admittedly raises monetary claims, however, in this case the procedural claim is based on two different substantive grounds, therefore the claim of each claimant is partially based on a different factual and legal basis.
  2. The raising of in fact two different pecuniary claims by each claimant (compensation and compensated statutory interest) leads to a violation of Article 2(1) of the Act on Pursuing Claims in Group Proceedings.
  3. It seems that the rationale for regulating group proceedings does not include the possibility of pursuing two different monetary claims by standardising them not by the common circumstances of the case, but by limiting the value of the compensated statutory interest.
  4. In a situation in which the factual and legal basis of the pursued claims and their homogeneous nature are the same for all of the claimants, all these claims need to be standardised if the Claimants decide to pursue them in group proceedings, without the possibility of dividing them into smaller groups, conditioned only by different amounts of the same claims.
  5. The potential undervaluation officers’ remuneration (specified in the legal provisions) related to the lack of valorisation in 2009 and 2010 should be the object of a dispute concerning remuneration, without the need to refer to tortious liability which makes it impossible to examine the dispute as a class action.
  6. It is not possible to attribute unlawfulness to the Minister for Internal Affairs’ omission of the valorisation of salaries of the Border Guard officers from 2009-2014, since the defendant was bound by the provisions of the budget law, the compliance with the Constitution of which raises no doubts in connection with the stance of the Constitutional Tribunal.
  7. Where the circumstances referred to in the statement of claims correspond to the statutory grounds of admissibility of a class action, but the factual circumstances substantiating the claim are not related to a tort, the actions is subject to dismissal.

The Regional Court in Warsaw 21st Labour Division in the following ruling bench:

Presiding Judge: Sylwia Kulma, Regional Court Judge

Judges: Monika Sawa, Regional Court Judge, Grzegorz Kochan (rapporteur), District Court Judge (delegated)

having examined on 21st October  2015 in Warsaw the case filed by  (…) against the State Treasury – Ministry for Interior in Warsaw for compensation

hereby decides to:

dismiss the statement of claims.

Decision of the Regional Court in Warsaw 24th Civil Division of 13th October 2015

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  1. The factual basis of an action in group proceedings is a conglomerate of statements indicated by a group’s representative in the substantiation of the statement of claims, from which the claim of each of the group members expressed therein is derived. A similar basis of claims pursued in an action may be spoken of when the basic factual circumstances comprising the basis of the demand in the statement of claims are equal.
  2. Conclusion by each of the members of their own, i.e. not the same as the others, agreement with the defendant excludes the existence of the same factual basis of the claim pursued in the action.
  3. A similar basis of claims pursued in the action may be spoken of when the basic factual circumstances comprising the basis of the demand in the statement of claims are equal.
  4. On the basis of the Act on Pursuing Claims in Group Proceedings, it is of no significance whether claims arise from the same or different legal relationships.
  5. In the case being considered, the issue is the agreements concluded with the use of the same standard terms including a contentious clause defining the principles for determination of the value of amounts to be paid to members of the group and amounts to be collected by the defendant from the group members’ funds originating from redemption of fund participation units purchased with the regular premiums in the event of termination of the life insurance policy agreements with the capital fund for reasons other than death. The template designation itself, as invoked by the defendant, does not prejudge the different content of individual provisions. Indeed, each of the agreements did contain the same provision defining the value and the manner of determination of amounts to be collected by the defendant.
  6. In the case under consideration no such ‘circumstances of conclusion of the agreement’ are presented which would substantiate the need to take evidence from testimony of all group members. In the statement of claims the claimant does not invoke the circumstance of conclusion by the group members of insurance agreements as a result of their having been misled or hoaxed which would substantiate the taking of the above-mentioned evidence in order to examine the motivating process or group members’ individual characteristics such as education, occupation, life experience, and similar circumstances. This is because a relevant circumstance in the case being considered is the very fact that the group members concluded with the defendant agreements containing contentious clauses which for the defendant constitute a basis for collecting the amounts previously paid in advance by the members of the group and which, according to the said members, are glaringly extortionate.

Decision of the Regional Court in Warsaw 16th Commercial Division of 6th October 2015

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The Regional Court in Warsaw, 16th Commercial Division in the following ruling bench:

Presiding Judge:     Magdalena Śliwińska – Stępień, Regional Court Judge

Judges:                    Marta Sadowska, Regional Court Judge, Cezary Skwara, Regional Court Judge

having examined on 6th November 2015 in Warsaw at the hearing in camera the case filed by (…) Ltd in W. against (…) joint stock company in W. for compensation in a class action following the claimant’s motion to exclude judges

hereby decides to:

dismiss the motion.