- The legislator did not indicate the criteria to be followed by the Court in the assessing the legitimacy of the motion for securing the costs of the trial. At the same time, he vested this institution with a facultative nature. Hence, it is fitting to bear in mind that on the one hand, the institution of the deposit serves to protect the defendant’s interests and is to counteract abusive actions. On the other hand, it may not limit the possibility to pursue claims in group proceedings by obligating the group representative to pay at the initial stage of the trial, a part of the predicted costs thereof in the event of losing the case. Moreover, it is also fitting to adhere to the principle of equal treatment of parties.
- Claims concerning adjustment of salaries for inflation do not fit within the catalogue of claims, the pursuit of which is admissible in group proceedings, under Article 1.2 of the Act of 17 December 2009 on Pursing Claims in Group Proceedings. Potential underestimation of the salary related to the failure to adjust it should therefore be the subject of a dispute for remuneration. There is no need to refer to tortious liability.
The decision was reversed by the decision of the Court of Appeals in Warsaw of 26th August 2015, file ref. no. III APz 25/15.
- A definition of a consumer included in Article 221 of the Civil Code, combines the subjective and objective criterion, indicating that only a natural person in a legal situation consisting in performing an act in law aimed at bearing a legal effect in its relationship with an entrepreneur may be considered a consumer. This provision should be understood as limiting the notion of a consumer only to the relationships between a natural person and an entrepreneur.
- A non-public school of higher education should be treated as an entrepreneur whereas a student in a relationship with a non-public school is entitled to the status of a consumer.
- In the Court’s assessment: [personal details of all members of the group] have complied with all requirements entitling them to appear in the present case in the capacity of members of the group.
- In May 2010, each of the mentioned parties owned property (movable or immovable) on the area flooded with flood waters and, in connection with the flooding in May 2010 and June 2010, suffered damages to property. Whereby, (…) – as a legal successor, by way of inheritance after the husband (…). All parties submitted declarations compliant with Article 6.2 of the Act of 17 December 2009 on Pursuing Claims in Group Proceedings, i.e. they indicated the demand raised, the circumstances substantiating the demand, group membership, and evidence.
- All the claims raised by the above-mentioned parties are claims of the same type in the meaning of Article 1.1 of the aforementioned Act – for the establishment of joint and several liability of the defendants in the case for the repair of the damage caused in the outcome of the defendants’ tort, which is comprised of the defendants’ negligence in the scope of their flood protection duties, which had jointly contributed to the failure of the flood bank located along the left bank of the Wisła River, 611th km of the Wisła River, in the locality of Świniary, Słubice municipality, Plock district, on 23 May 2010, and subsequently two-time flooding, in May and June 2010, of the terrain located on the left bank of the Wisła River in the Iłowsko-Dobrzykowska Valley area. Hence they are based on the same factual basis.
The Regional Court for Warsaw-Prague in Warsaw 3rd Civil Division in the following ruling bench:
Presiding Judge: Ewa Dietkow, Regional Court Judge
Judges: Beata Karczewska-Mazur, Regional Court Judge, Radosław Olszewski, Regional Court Judge
having examined on 28th October 2014 in Warsaw at a hearing in camera in a closed session the case filed by S.P. against (…) Ltd. in Z. for payment
hereby decides to:
establish the following group membership:
Subgroup 1:
- [2 persons]
- [1 person]
- [1 person]
Subgroup 2:
- [2 persons]
- [2 persons]
- [2 persons]
Subgroup 3:
- [2 persons]
- [2 persons]
- [2 persons]
Subgroup 4:
- [2 persons]
- [1 person]
Subgroup 5:
- [1 person]
- [1 person]
- [1 person]
Subgroup 6:
- [1 person]
- [2 persons]
Subgroup 7:
- [2 persons]
- [1 person]
Subgroup 8:
- [2 persons]
- [2 persons]
Subgroup 9:
- [3 persons]
- [2 persons]
Subgroup 10:
- [2 persons]
- [1 person]
Subgroup 11:
- [2 persons]
- [2 persons]
Subgroup 12:
- [1 person]
- [1 person]
- [1 person]
Subgroup 13:
- [2 people]
- [1 person]
Subgroup 14:
- [1 person]
- [3 persons]
- In group proceedings the demand must be typical for all the claims. Therefore, the demand raised in group proceedings by the group’s representative must be typical for the entire group he or she is representing. The indicated condition means that a legal or factual situation of the group members must be equal. Of course, slight differences can exist between the individual grounds of the claims, however, it is necessary for the material factual circumstances to substantiate the common request for all of the claims.
- The group’s representative is obligated to prove a given person’s membership in the group before the court. It is a prerequisite allowing for the inclusion of a specific person within a group bringing a group action in cases on pecuniary claims.
The decision was reversed by the decision of the Court of Appeals in Warsaw of 31st March 2015, file ref. no. I ACz 166/15.
- The statute of limitation cannot be the grounds for rejecting a class action because the issue of limitation is a substantive matter to be examined only after establishing that a class action is admissible.
- The condition for initiating group proceedings regarding a cash claim is for all group members, not merely the representative of the group, to give consent to the Court for lump sum damages. Should it be assumed that the Group Representative may submit such a declaration, there would be no obstacle to find that it had been already incorporated in the contents of the statement of claims itself and other pleadings indicated the amounts sought for, without the necessity of submitting a separate document.
The Regional Court in Szczecin, 1st Civil Division in the following ruling bench:
Presiding Judge: Wojciech Machnicki (rapporteur), Regional Court Judge
Judges: Halina Musiał, Regional Court Judge, Tomasz Sobieraj, Regional Court Judge
having examined on 6th October 2014 in Szczecin the case for payment filed by K. P. – the representative of the group in the class action against the State Treasury – (…) as a result of the Defendant’s appeal against the decision of the Regional Court in Warsaw dated 13th October 2015, file ref. no. XXIV C 500/14
decides to:
hear the case in group proceedings.
- Deciding on the admissibility of group proceedings is the first stage of the proceedings and constitutes the form of a unique prejudication, unrelated to the content-related assessment of the legitimacy of the claims pursued in the statement of claims.
- The Act on Pursuing Claims in Group Proceedings does not contain a definition of a consumer protection case or a definition of a consumer. Therefore, invoking Article 221 of the Civil Code, it is fitting to indicate that a consumer is considered to be a natural person performing an act in law not directly related to their economic or professional activity.
- The role of the group representative filing a statement of claims in a group proceedings consists in providing a convincing substantiation that pursued claims of all group members, grounded on many legal bases, are based on the same or equal factual basis.
- If each of the members of the group identifies the damage inflicted thereupon by the defendants with the loss of funds paid to the company in performance of the agreements concluded therewith and predicted profits, then from this point of view, the type of agreements and conditions of their conclusion become a substantial, differentiating circumstance of the factual status.
- The legislator rendered the notion of a “subgroup” more precise – it covers at least 2 persons whose claims, due to varied circumstances concerning individual members of the group, may not be standardised in the frames of a group. A subgroup is comprised of a set of parties whose claims, due to the occurring diversification (rendering standardisation within the group impossible), are standardised by forming a separate set of parties (called a subgroup).
- The standardisation of claims in the frames of a subgroup consisting solely on the fact that group members’ claims are being adjusted to the value of the lowest of them, without indication of other than the value of the damage criteria for claims standardisation, in the face of many differentiating factual circumstances existing in the case, seems insufficient.
- The withdrawal of a motion for obligating the claimant to enter a deposit is admissible. In the event the defendant withdraws the motion before the decision by virtue of which the subject motion was examined becomes final or is challenged, the court of first instance shall reverse the decision and discontinue incidental proceedings initiated by the motion, if it finds the withdrawal admissible.
- From the point of view of the hypothesis of Article 8.2 sentence 1 of the Act on Pursuing Claims in Group Proceedings, the performance of the first procedural action by the defendant is of significance. However, in this case what motivated the defendant in performing the act, or whether this act evoked any response of the court is of no significance. The legislator did not differentiate between the strictly formal activities and adopting a content-related position in the case.
- Raising a demand by the defendant to obligate the claimant to enter a deposit for securing the costs of the proceedings later than at the first procedural act shall result in the rejection of the motion.
The decision was changed by the decision of the Court of Appeals in Warsaw of 3rd June 2015, file ref. no. VI ACz 479/15.
- In order to speak of the sameness of the factual basis substantiating a possibility of pursuing claims in group proceedings, prerequisites for the emergence of claims should be common for all participants of the group.
- Diversification of the factual circumstances impacting the form and extent of the damage makes it impossible to establish the sameness of the factual basis. Such a diversification occurs if damage of each member of the group may have emerged in a different form – depending on the factual status related to a specific member of the group.
- If the claimants’ claims remain in no connection with the need to protect the consumer against a stronger participant of transactions, i.e. the claimant does not demand special protection due to his status as a consumer, but only seeks compensation in relation to the emergence of premises of compensatory liability, then such a case is not a consumer protection case, even if the claimants’ claim is contained in the model contract which may be subject to assessment in the scope of abusiveness.
