- The term “claim” used in the Act (Polish Act on pursuing claims in group proceedings) is used in the meaning of the procedural request (demand). “Claim asserted in a court proceedings” in other words refers to the subject of the proceedings: for establishment, adjudication, shaping the legal relationship or right. Its specification is connected with the division of actions into, respectively: action for the establishment of the existence or the non-existence of the legal relationship or law, action for adjudication of the consideration, on the shaping of a legal relationship or right. The claimant (in the statement of claims) and the group members (in declarations on joining the group) filed pecuniary claims (compensatory claims for the payment of a specified amount reflecting the value of the damage incurred) towards the defendants. In the case of such claims, as indicated above, demanding solely the establishment of the defendant’s liability, which the claimant and the group members are claiming for, is admissible. Hence the premise of pursuing claims of one type is fulfilled.
- In the event of tort claims, claims resulting from one event (possibly a complex event) or from many events of the same type, should first and foremost be treated as those based on the same or similar (equal) factual basis.
- The deposit is to serve securing the enforcement of the judgement in the scope of the costs of proceedings which may be awarded to the defendant. The costs of proceedings are costs necessary for the purposeful pursuit of one’s rights and a purposeful defense, awarded to the party winning the case from the opponent (Article 98 of the CCP – Polish Civil Procedural Code). These are therefore not the costs awarded to the defendant as the court costs (i.e. fees and expenses).
- The essence of the deposit is to secure the claim for the reimbursement of the costs. Thus, similarly as this takes place in injunction proceedings, the defendant should at least make plausible that the lack of the deposit will hamper or seriously impede the enforcement of the judgement in the scope of the costs of proceedings.
- The amount of the deposit cannot be impacted by the claimant’s motions on allowing evidence from expert opinions or their presumable remuneration, as they are without influence on the costs of proceedings which may be awarded to the defendant from the claimant. The same regards the remuneration established by the claimant with his legal counsels.
The Regional Court in Warsaw, 3rd Civil Division in the following ruling bench:
The Chairman: Agnieszka Rafałko, Regional Court Judge
The Judges: Joanna Zielińska, Regional Court Judge; Andrzej Lipiński, District Court Judge (delegated)
having examined on 28th February 2013 in W. the case filed by the Municipal Consumer Ombudsman of the Municipal Office of the Capital City, the representative of the group (…) against the Housing Association (…) with its registered office in W. for payment
decides to:
hear the case in group proceedings.
- A claim for consumer protection is every claim that a consumer is entitled to against an entrepreneur, resulting from the legal transaction made between the consumer and the entrepreneur and is not limited only to claims based on specific acts within the scope of consumer law. There is no basis to accept that the aim of the legislator was to differentiate the status of consumers into those who can seek the protection of their claims in group proceedings and those persons who, despite the status of consumer, have to pursue their claims within the regular (ordinary) proceedings.
- It is commonly accepted, both in the case law as well as in the doctrine, that the status of the given person as a consumer should be assessed at the moment of performance of the legal action. The later changes on the allocation of the purchased good or service should not lead to changes of the once accepted assessment.
- Even in assuming the allegation of the defendant that Article 5 of the Act on Pursuing Claims in Group Proceedings) regards to the whole of the remuneration, and not only to the part connected with the result of the proceedings, then there is still no basis to state that the violation of this provision results in the invalidity of the entire agreement with the attorney. The legislator did not reserve such a sanction.
- As opposed to Article 1119 of the Code of Civil Procedure, in Article 8 of the Act, the legislator indicated that the court may obligate the claimant to submit a deposit. Hence not in every case of filing a motion by the defendant a deposit should be submitted. Therefore, it was necessary to consider whether in the present case exists the risk that in the event of the defendant winning the case, he could have problems with enforcing the awarded costs of the proceedings.
The Regional Court in Warsaw 16th Commercial Division in the following ruling bench:
Presiding Judge: Maria Ziet- Zawadzka, Regional Court Judge
Judges: Marian Kociołek, Regional Court Judge, Beata Dzierżko, District Court Judge
having examined on 14th February 2013 in Warsaw at the hearing in camera the case filed by group representative (…) Ltd in W. against (…) Society (…) joint stock company in W. for payment:
hereby decides to:
- on the basis of Article 7 of the Act of 17th December 2009 on Pursuing Claims in Group Proceedings in conjunction with Article 1838 CCP remit the case to mediation;
- appoint a mediator – K. J.;
- set the duration of mediation for a period of one month, as of the date on which the order was served.
The order was reversed by the decision of the Court of Appeals in Gdańsk 1st Civil Division dated 24th April 2013, case file no. I ACz 300/13.
Order of the Regional Court in Gdańsk 9th Commercial Division, in the following ruling bench:
Presiding Judge: Dariusz Kardaś, Regional Court Judge
having examined on 30th January 2013 in Gdańsk at the hearing in camera the case filed by group representative (…) against (…) for payment,
orders to:
return the statement of claim.
- It is assumed that the notion of a “claim” – used in Article 1 section 1 of the Act on pursuing claims in group proceedings – is used in the sense of the procedural claim. A procedural claim is a defendant’s statement, detached from substantive law, on the existence of some entitlement, submitted to the court with the view of granting it legal protection. Defendant’s statement, defined in the statement of claims, takes on the form of a demand for the award, for the establishment, and for the shaping of a right or legal relationship. Filing a motion for the granting of legal protection in the same form by all parties covered by the group proceedings is a decisive precondition for the admissibility of group proceedings. Group members, therefore, have to raise the same demand – for the adjudication, for the declaration of the existence or non-existence of a specific right or legal relationship, for the shaping of a legal relationship or a right. Pecuniary claims are homogenous claims, while non-pecuniary claims have this attribute in the case of a homogenous behaviour of the defendant, e.g. cessation of engaging in a specific dishonest market practice.
- The group members’ claims are based on the same factual and legal grounds. The members of the group are consumers who concluded individual agreements with the defendant on the basis of the same or similar model contract. Each of the agreements included a valorisation clause and lack of possibility to withdraw from the agreement in the event of the rise in the property value as a result of valorisation. The circumstance that the content of individual valorisation clauses is different is of no relevance. The factual basis equal for all members of the group is not altered by the fact that some of them negotiated the valorisation fee while others paid it in full. It is of no relevance, either, whether members of the group concluded developer agreements directly with the defendant or through subrogation by way of an assignment agreement.
- The possibility of obligating the claimant to pay a deposit is within the Court’s competence. The deposit is to secure the return of the costs of the proceedings, if the claimant loses the case.
- According to Article 1 section 1 of the Act (Polish Act on pursuing claims in group proceedings), the claims pursued in group proceedings should be of one type, which means, that the members of the group are pursuing granting of legal protection in the same form – they have to submit the same request (demand).
- We are dealing with “the same” (identical) factual basis of the pursued claims when the identicalness of the factual circumstances takes place, and the legal protection is pursued by the participants of one event, meaning that there is a link based on the fact that the same event caused the damage. “Similar” (equal) factual basis means a similarity between the individual factual statuses. We are dealing with “equal” factual status when many similar factual events take place, i.e. using the services of one bank, taking one medication, becoming poisoned by the same food product, abusive clauses in loan and developer agreements, etc. The basic set of facts constituting the basis of the occurrence of the disputed legal relationship and a specific claim have to be analogous. The notion of “factual basis” should be understood as a specified set of elements of the factual status, which are invoked in order to prove the statement of claims.
- The factual basis in the meaning of Article 1 section 1 of the Act is only the basic (initial) set of facts substantiating the claim and discrepancies as to the facts substantiating only the amount of the claim are not an obstacle in recognizing the group proceedings as admissible. Nevertheless, application of the construction of group proceedings is substantiated when there is a set of preconditions which allow for uniform subjective qualification of the illegality of the causal action which resulted in the damage, the compensation of which is the subject of the claim. The essence of group proceedings is the commonality, manifesting itself in the demand which must be typical (common) for all of the claims, the factual or legal situation of the group members must be equal.
- On the one hand the legislator does not require the identicalness of all of the factual elements, as this would highly narrow the scope of the application of the act, however, on the other hand, the group proceedings would not fulfill their objective – improvement in the effectiveness of proceedings in cases characterized by a significant level of the individuality of the facts and the characteristics of the individual group members. Group proceedings fulfill their role when we are dealing with “typicalness” or “representativeness” of the claim towards all of the group members. The condition of “typicalness” is fulfilled when a legal or factual situation of the group members is 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.
- In introducing the Act on pursuing claims in group proceedings the legislator bore in mind the introduction of such court proceedings which would at the same time protect the interests of many entities in single proceedings and eliminate the need to conduct parallel proceedings and repeating actions, which can be carried out on a one time basis. This referred to the comprehensive and quick settlement of the dispute. Taking this functional interpretation of the Act into account, the Court is of the opinion that the pursuit of claims on the basis of the provisions of this act is possible in the case in which there is a relationship between the claims covered under the statement of claims, which results in the fact that the joint ruling on them is profitable, that after the forming of the group’s composition the joint ruling and adjudication in the scope of all of the group members will be possible.
The decision has been reversed by the decision of the Court of Appeals in Warsaw, 6th Civil Division, of 26th march 2013, VI ACz 540/13.
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; Krystyna Stawecka, Regional Court Judge
having examined on 10th January 2013 in Warsaw at the hearing in camera of the group action filed by W. L. – group representative against A. K. for payment, following the group representative’s motion for security deposit,
decides to
dismiss the motion.
The Regional Court in Opole 1st Civil Division with the following ruling bench:
Presiding Judge: Magdalena Domińczyk-Trzciańska, Regional Court Judge
Judges: Ryszard Kądziela, Regional Court Judge;
Beata Hetmańczyk, Regional Court Judge
having examined on 7th January 2013 in Opole at the hearing in camera the case filed by J. M. – the group representative against (…) Spółka z o.o. in O. for payment,
decides:
under Article 17 of the Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws of 2010. No. 7, item 44) to establish that the group is composed of the following individuals: [group member data].
