Decision of the Regional Court in Warsaw 3rd Civil Division of 15th September 2015

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

Presiding Judge:   Joanna Kruczkowska, Regional Court Judge

Judges:  Joanna Bitner, Regional Court Judge (rapporteur), Grzegorz Chmiel, Regional Court Judge

having examined on 15th September 2015 in W. at a hearing in camera the case filed by K.K., the representative of the group against (…) the Housing Association in W. for payment

 hereby decides to:

amend the decision of the Regional Court in Warsaw 3rd Civil Division dated 10th July 2015 and rendered in the present case by entering the amount of PLN 1,489,995.53 in point I of the said decision as the value of the subject of the litigation in place of PLN 1,441,398.62, and by adding the words ‘(increased by the VAT)’ after the words “equivalent for the land”, and by changing the 2-month time limit for joining the group to a 1-month time limit as of the publishing of the announcement; furthermore, the Court decides to reverse point III of the said decision:

I. order the publishing of announcements on the opening of group proceedings with the following wording:

‘Under the Act on Pursuing Claims in Group Proceedings, a class action has been initiated before the Regional Court in Warsaw 3rd Civil Division, file reference number III C 56/15, in the case filed by K.K. against (…) the Housing Association in W. for payment

The group consists of 34 members and the value of the subject of the litigation is PLN 1,489,995.53.

K.K., as the representative of the group, requested the Court to award the above-given amount to the members of the group from  the Defendant (…) Housing Association in W. on the grounds of unjustified enrichment which the Housing Association achieved as a result of unlawfully overcharging the building contributions for the residential premises and parking spaces in the building at ul. (…). in W. According to the Claimant, the building contributions already paid by the members of the group were calculated inaccurately, because the equivalent of the land value (increased by VAT) was included as a component of the building cost, whereas the Housing Association in reality had not acquired these lands, having obtained it free of charge in perpetual ususfruct.

Each person, whose claim may be examined in this group proceeding case, namely each person who acquired the right to residential premises or a parking space within the framework of the investment at ul. (…) from (…) the Housing Association and paid the building contribution, of which the land value equivalent (increased by VAT) was a component, and did not conclude the contract in connection with their economic or professional activity – may join the group within the non-extendible time period of 2 months starting from the day of publishing of this announcement.

The group may be joined by way of submitting a written declaration on joining the group to the representative of the group – K.K. – forwarded to the serving address of his legal representative: T. and (..) Law Firm (…) registered partnership, ul. (…) (…) apartment, (…)-(…) W.

Joining the group after the lapse of the time period given above is inadmissible.

Submitting the declaration on joining the group is equivalent to granting consent to K.K. to act as the representative of the group and to the rules of legal representative remuneration, and to acceding to the ’Agreement to form a group in order to pursue claims against (…) the Housing Association with its registered office in W. under the provisions of the Act on Pursuing Claims in Group Proceedings’, which regulates, among others, the group’s decision making process and also the manner of financing of the costs of the proceedings.

The remuneration of the legal representative paid by each group member shall consists of:

one-time lump sums in the amount of:

– PLN 1,600.00 (+ VAT) – for the first instance and the appeal proceedings,

– PLN 1,067.00 (+ VAT) – for the second instance,

– PLN 712.00 (+ VAT) – for preparation of a cassation complaint and/or representation before the Supreme Court, and a a  success fee in the amount of 6 % of the amount enforced or paid by (…) the Housing Association in W. awarded to a group member (+ VAT)

and the costs of the legal representation awarded by the Court to the Claimant.

Parties who have signed the Financing Agreement in order to acquire single residential premises (as joint co-ownership or co-ownership in fractional parts) shall pay a single fee.

Parties who have signed the Financing Agreement in order to acquire more than one residential premises (each of such premises as  joint co-ownership or co-ownership in fractional parts) shall pay a single fee.

A party that has signed the Financing Agreement (Financing Agreements) in order to acquire more than residential premises shall pay a single fee.

A party wishing to join to the proceeding also needs to join the  ’Agreement to form a group in order to pursue claims against (…) the Housing Association with its registered office in W. under the provisions of the Act on Pursuing Claims in Group Proceedings ‘ (the template of which is available on the S. Law Firm website and/or it is made otherwise available by the Group) concluded by the group members joining the proceedings within the action filed.

A party wishing to join to the proceedings also needs to pay the lump sum of PLN 1,200 gross, determined in the hereinbefore mentioned Agreement, to be spent on: (1) reimbursing the outgoing costs of the group members’ activities connected with litigations against (…) the Housing Association preceding the filing of the class action  (including the proceedings before the Consumer and Competition Protection Court in which the Court found that the provisions on valorization included in the Financing Agreement constitutes a prohibited clause); (2) securing the potential costs of the group proceedings, as well as for (3) current organizational expenses of the group’s operation and for (4) other expenses in keeping with the groups’ decisions.

A legally valid judgment is binding for all the members of the group, i.e. all the persons who before the lapse of the 1-month period submit a declaration on joining the group and become included in the Court’s decision establishing the ’ composition of the group.

All the details regarding the joining of the group, as well as the templates of the documents (including the template of a declaration of on joining the group) can be downloaded at www.(…).net and www.(…)net”.

II. to impose on Claimant K.K. by way of his legal representative, P.T., attorney-at-law, an obligation to publish, at the group’s expense, the above-mentioned announcement in the capital city of Warsaw news column of one of the daily papers listed below: ‘(…)’, (…) Gazeta (…), Gaeta (…), Gazeta (…), ‘(…) or (…) – and to submit the proof of performance of the above-mentioned obligation within 3 weeks, under pain of publishing the announcement by the Court at the Claimant’s expense.

Decision of the Regional Court in Warsaw 25th Civil Division of 7th September 2015

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The decision was changed by the decision of the Court of Appeals in Warsaw 6th Civil Division of 23rd March 2016, file ref. no. I ACz 2269/15.

  1. The factual basis of claim in group proceedings consist in the complex of statements indicated by the group representative in the substantiation of the action from which the claims of each group members involved in the action are derived.
  2. The same factual basis of the statement of claims (identical factual circumstances) takes occurs when there is a bond between the group members based on the unity of the damage-causing event. For example, the same factual basis of the claims will occur when members of the group are consumers who concluded individual agreements with a particular entrepreneur on the grounds of the same contract template.
  3. The equal factual basis of claims occurs when a number of similar events occurred, e. g. a number of similar contracts were concluded with one entrepreneur (similarity of events). Whereby, what is relevant, the Court should always examine whether and to what extent the issues common for whole group dominate over the issues which are strictly individual.
  4. With respect to claims based on tort, the claims may be considered as based on the same or equal factual basis if they result from the same type of event (which is a tort in that case).

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

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

Judges:                     Anna Błażejczyk, Regional Court Judge; Monika Włodarczyk, Regional Court Judge

having examined on 7th September 2015 in Warsaw at the hearing in the class action filed by R.D. – the group representative against the State Treasury – General Prosecutor, Regional Public Prosecutor in G. and District Public Prosecutor G.-W. in G. for payment,

hereby decides to:

  1. reject the statement of claims,
  2. award from R.D. – he group representative in favor of the State Treasury – General Counsel to the Treasury the amount of PLN 7,200.00 (seven thousands two hundred zloty 00/100) as a reimbursement for the legal representation.

Decision of the Regional Court in Warsaw XXV Civil Division of 31st August 2015

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

Presiding Judge: Anna Pogorzelska, Regional Court Judge

Judges: Hanna Jaworska, Regional Court Judge, Anna Błażejczyk, Regional Court Judge

having examined on 31st August 2015 in Warsaw at the hearing in camera the case filed by E. L. against A. K. for payment, in the proceedings on establishing the composition of the group composition,

decides to

establish the composition of the group divided into subgroups consisting of the following persons: [80 persons].

Decision of the Regional Court in Wroclaw 1st Civil Division of 28th August 2015

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

Presiding Judge:        Aneta Fiałkowska-Sobczyk, Regional Court Judge

Judges:                        Sławomir Urbaniak, Regional Court Judge;

      Dominika Romanowska, Regional Court Judge

after hearing on August 28th, 2015 in closed session, a case brought by [data of 23 people] against “(…) Limited liability company (…)” limited joint-stock partnership with its registered office in W. for payment

decides:

under Article 174 [1] [4] CCP to suspend the proceedings in the case.

The judgements of the Regional Court in Wroclaw published on the website were facilitated by the President of the District Court in Wroclaw in letter of 27th August 2019. The texts of the judgements were processed by the entity operating this website by adding theses, visual compilation and removing punctuation and literal errors. The judgements have been translated by the entity operating this website.

The authority obliged to provide public sector information is not responsible for its processing, further sharing and use.

Decision of the Regional Court in Warsaw 3rd Civil Division of 13th August 2015

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The decision has been amended by the decision of the Court of Appeals in Warsaw 6th Civil Division dated 23rd February 2016, VI ACz 2340/15.

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

Presiding Judge: Mariusz Solka, Regional Court Judge

Judges: Joanna Korzeń, Regional Court Judge, Andrzej Lipiński, District Court Judge (delegated)

having examined on 13th August 2015 in W. during the hearing in camera the case filed by K.K., the representative of the group against the Housing Association (…) in W. for payment

re.: the Claimant’s motion for the exclusion of Regional Court Judges: E. W., A.M., J. K.

hereby decides to:

dismiss the motion.

 

Decision of the Regional Court in Piotrków Trybunalski 1st Civil Division of 13th July 2015

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The Regional Court in Piotrków Trybunalski, having examined, on 13th July 2015, the case of I.G. – as a group representative against the (…) University of Business (Wyższa Szkoła Handlowa) in P. for payment, during an in camera hearing

hereby decides

  1. to publish the following announcement in the next edition of the newspaper (…):

“The class action started by I.G. as the group representative against (…) University of Business (Wyższa Szkoła Handlowa) named in P. for undue payment for diploma exams is pending before the Regional Court in Piotrków Trybunalski.

The Court informs about the possibility of joining the group by persons whose claims can be examined in this case. The declaration should be submitted in writing to the group representative I.G. (address for delivery: Law firm of legal counsel T.D., street (…). S.G. – R. 47, (…) – (…) W.) within 3 months from the issuance of this announcement.

The basic remuneration of the Claimants’ legal representation has been set as the amount of PLN 100 (gross multiplied by the number of the group members. An additional fee of 20% (twenty percent) of the awarded amount of payment should also be added. The final judgment in the case is also binding for the members of the group.”

Decision of the Regional Court in Warsaw 3rd Civil Division of 10th July 2015

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The decision has been amended by the decision of the Regional Court in Warsaw 3rd Civil Division dated 15th September 2015, III C 56/15

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

Presiding Judge: Joanna Kruczkowska, Regional Court Judge

Judges: Joanna Bitner, Regional Court Judge (rapporteur), Grzegorz Chmiel, Regional Court Judge

having examined on 15th September 2015 in W. at a hearing in camera the case filed by K.K., the representative of the group against (…) the Housing Association in W. for payment

 hereby decides to:

I. order the publishing of announcements on the opening of group proceedings with the following wording:

’Under the Act on Pursuing Claims in Group Proceedings, a class action has been initiated before the Regional Court in Warsaw 3rd Civil Division, file reference number III C 56/15, in the case filed by K.K. against (…) the Housing Association in W. for payment.

The group consists of 34 members and the value of the subject of the litigation is PLN 1,441,398/62.

K.K., as the representative of the group, requested the Court to award the above-given amount to the members of the group from  the Defendant (…) Housing Association in W. on the grounds of unjustified enrichment which the Housing Association achieved as a result of unlawfully overcharging the building contributions for the residential premises and parking spaces in the building at ul. (…). in W. According to the Claimant, the building contributions already paid by the members of the group were calculated inaccurately, because the equivalent of the land value was included as a component of the building cost, whereas the Housing Association in reality had not acquired the land, having obtained it free of charge in perpetual ususfruct.

Each person, whose claim may be examined in these group proceedings, namely each person who acquired the right to residential premises or a parking space within the framework of the investment at ul. (…) from (…) the Housing Association and paid the building contribution, of which the land value equivalent was a component, and did not conclude the contract in connection with their economic or professional activity – may join the group within the non-extendible time period of 2 months starting from the day the of publishing of this announcement.

The group may be joined by way of submitting a written declaration on joining the group to the representative of the group – K.K. – forwarded to the serving address of his legal representative: T. and (..) Law Firm (…) registered partnership, ul. (…) (…) apartment, (…)-(…) W.

Joining the group after the lapse of the time period given above is inadmissible.

Submitting the declaration on joining the group is equivalent to granting consent to K.K. to act as the representative of the group and to the rules of legal representative remuneration, and to acceding to the ’Agreement to form a group in order to pursue claims against (…) the Housing Association with its registered office in W. under the provisions of the Act on Pursuing Claims in Group Proceedings’, which regulates, among others, the group’s decision making process and also the manner of financing of the costs of the proceedings.

The remuneration of the legal representative paid by each group member shall consists of:

one-time lump sums in the amount of:

– PLN 1,600.00 (+ VAT) – for the first instance and the appeal proceedings,

– PLN 1,067.00 (+ VAT) – for the second instance,

– PLN 712.00 (+ VAT) – for preparation of a cassation complaint and/or representation before the Supreme Court, and a a  success fee in the amount of 6 % of the amount enforced or paid by (…) the Housing Association in W. awarded to a group member (+ VAT)

and the costs of the legal representation awarded by the Court to the Claimant.

Parties who have signed the Financing Agreement in order to acquire single residential premises (as joint co-ownership or co-ownership in fractional parts) shall pay a single fee.

Parties who have signed the Financing Agreement in order to acquire more than one residential premises (each of such premises as  joint co-ownership or co-ownership in fractional parts) shall pay a single fee.

A party that has signed the Financing Agreement (Financing Agreements) in order to acquire more than residential premises shall pay a single fee.

A party wishing to join to the proceeding also needs to join the  ’Agreement to form a group in order to pursue claims against (…) the Housing Association with its registered office in W. under the provisions of the Act on Pursuing Claims in Group Proceedings ‘ (the template of which is available on the S. Law Firm website and/or it is made otherwise available by the Group) concluded by the group members joining the proceedings within the action filed.

A party wishing to join to the proceedings also needs to pay the lump sum of PLN 1,200 gross, determined in the hereinbefore mentioned Agreement, to be spent on: (1) reimbursing the outgoing costs of the group members’ activities connected with litigations against (…) the Housing Association preceding the filing of the class action  (including the proceedings before the Consumer and Competition Protection Court in which the Court found that the provisions on valorization included in the Financing Agreement constitutes a prohibited clause); (2) securing the potential costs of the group proceedings, as well as for (3) current organizational expenses of the group’s operation and for (4) other expenses in keeping with the groups’ decisions.

A legally valid judgment is binding for all the members of the group, i.e. all the persons who before the lapse of the 1-month period submit a declaration on joining the group and become included in the Court’s decision establishing the ’ composition of the group.

All the details regarding the joining of the group, as well as the templates of the documents (including the template of a declaration of on joining the group) can be downloaded at www.(…).net and www.(…)net.’
II. to impose on Claimant K.K. by way of his legal representative, P.T., attorney-at-law, an obligation to publish, at the group’s expense, the above-mentioned announcement in the capital city of Warsaw news column of one of the daily papers listed below: ‘(…)’, (…) Gazeta (…), Gaeta (…), Gazeta (…), ‘(…) or (…) – and to submit the proof of performance of the above-mentioned obligation within 3 weeks, under pain of publishing the announcement by the Court at the Claimant’s expense.

 III. post the announcement in the Court’s building and in the Office D. – U.

Decision of the Regional Court in Kraków 1st Civil Division of 2nd July 2015

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

Presiding judge:          Marta Woźniak, Regional Court Judge

Judges:                          Agnieszka Włodyga, Regional Court Judge

                                       Ewa Olszewska, Regional Court Judge

having examined on 2nd July 2015 in Krakow at the hearing in camera the group action filed by Z. R. acting as the representative of the group consisting of: [data of 27 group members] against the State Treasury – Voivode Ś., Director of the Regional Board for Water Management in K.; the Ś. Voivodeship; the Poviat of S.; the Municipality of S., for establishment,

decides to:

change the decision of the Regional Court in Krakow 1st Civil Division of 26 June 2014 by admitting the evidence from an opinion of (…) (instead of an opinion of scientific or scientific and research institute) under the following circumstances:

  1. determination of the status of flood protection of the areas located in the area of the defendants’ jurisdiction, including in particular determination of the V. River bed condition and the V. River water flow speed in May 2010; what the impact of the lack of drainage, regulation and dredging works on the risk of flooding of the areas located on the right side of this section of the V. River was and whether the lack of these works contributed to the breaching (as a result of washing away) of the flood embankment in K. on 19 May 2010 and the breach of the embankments of the right tributary of the V. River – the T. River in May 2010; whether and to what extent the condition of the river bed and the condition of the embanked area (overgrown with trees and shrubs) reduced the flow of the flood wave in May and June 2010 and what the impact of the V. River bed condition was; determination of the condition of the embankment areas in the poviat of S. on the water level during the flood wave in May and June 2010 in relation to the height of the flood embankment crown; determination of the causes of the flood embankment breach in K.;
  2. determination of the condition of water drainage facilities located in the area of the defendants’ jurisdiction, including in particular the technical condition of the flood embankment located along the V. River in the poviat of S., in the district of K. in May 2010; whether there were deficiencies in the modernization and maintenance of these embankments in the years of 2001-2010 before the breach of the embankments caused by washing away on 19 May 2010; whether the structure of the right-bank flood embankment of the V. River in the poviat s. at the height of K. was compliant with the legal requirements and the relevant standards; whether and to what extent the condition of the embankment increased the risk of flooding of the areas located on the right side of this section of V. River and contributed to the breach in the flood embankment in K. (as a result of blurring) on 19 May  2010 and the breach in the embankments of the right-side tributary of the V. River – the T. River in May 2010.

Decision of the Regional Court in Warsaw 1st Civil Division of 28th May 2015

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  1. “The same” factual basis of an action (identicalness of factual circumstances) takes place when a bond based on the unity of the damage-causing event occurs. In turn, an “equal” factual basis of claims takes place when many similar factual events occur. However, from the point of view of group proceedings, such a distinction is neutral. This is because each basis which is the same, is at the same time “equal”, hence, for group proceedings to be admissible, meeting the condition of commonality of the factual basis (equal) suffices.
  2. The factual basis of a group action is a conglomerate of factual circumstances equivalent in relation to all members of the group, substantiating the existence of a specific legal relationship.
  3. When individual circumstances prevail over circumstances which are common for group members, it does not permit for an assumption that an common factual basis occurs in the dispute.
  4. The goals that the Polish legislator sets for the group proceedings must constitute the main point of reference for the assessment of introduced solutions – the means used to realise them. The following is commonly mentioned as the fundamental functions (goals) of the group proceedings: economy of the judiciary, standardisation of awards in specific individual cases, extending access to court – ability to assert one’s claims more effectively and faster.

The decision was changed by the decision of the Court of Appeals in Warsaw of 21st September 2015, file ref. no. I ACz 1648/15.

Judgement of the Regional Court in Bydgoszcz 1st Civil Division of 29th April 2015

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  1. If the grounds of tortious and contractual liability coincide, the ruling court is obligated to decide based on which grounds the case should be adjudicated on, with taking into consideration which of the grounds is more advantageous for the injured party or due to the nature of the claim of the cases which may be applicable in a specific case.
  2. Implementation by the bank only a superficial procedure of verification of candidates for bank’s agents provides the grounds to find that the defendant is at fault in selecting an agent, which entails the bank’s liability under Article 429 CC.
  3. Although concluding an agency agreement containing provisions intended to make the agency outpost maximally similar to the bank’s own outposts was admissible, nevertheless, the nature of the activity which was to be conducted in such outposts resulted in the existence of the bank’s particular duties in the scope of ensuring effective supervision of the correct functioning of the agency outposts in order to protect interests of the bank’s clients.
  4. Considering that in the case under consideration the claimant and the members of the group were injured by misleading them in terms of the nature of the agency outpost and causing an erroneous conviction in them that the ‘investment loan’ agreement concluded thereby is a bank product, which was an action contradictory with the provisions of the agency agreement, the bank’s liability may not be at all excluded. In this situation, the defendant bank, under the provision of Article 474 CC, could be held liable for the damage caused by the agent, since it is held liable for his actions as for its own actions.
  5. The fact that some of the injured parties did not at all read the agreement or did so superficially is a circumstance that might provide the grounds to find that they contributed to the arising of the damage in the meaning of Article 362 CC. Yet, this circumstance should be assessed with taking into consideration the circumstance whether the fact of careful reading of the agreement would have impacted a decision to conclude it.
  6. The obligation to redress the damage is a punitive measure specific to penal proceedings and does not exclude a possibility of pursuing claims in civil proceedings against another entity also liable for the damage, especially in a situation where the factual and legal basis of the demand are different.

The judgements of the Regional Court in in Bydgoszcz published on the website were facilitated by the President of the District Court in Bydgoszcz in the letter of 27th August 2019, and then processed by the entity operating this website. The judgements have been translated by the entity operating this website.