Announcement on the 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 the Z. R., acting as the group representative, against the State Treasury – Voivode Ś., the Director of the Regional Board for Water Management in K.; the Ś. Voivodeship; the Poviat of S. and the Municipality of S. (hereinafter jointly referred to as: ‘Defendants’) for establishment of their joint and several liability, has commenced before the Regional Court in Krakow 1st Civil Division to file ref. no. I C 1419/10.
Z. R., as the group representative, requested for the establishment that the Defendants are jointly and severally liable for damages to the group members specified in the decision on the determination of the group composition, resulting from the Defendants’ complex tort consisting in the unlawful exercise of public authority by the Defendants in the field of the flood protection (improper performance of the duties) in the area of the poviat of S. in the Ś. Voivodeship, which resulted in the water overflow over the crown of the flood embankment located along the V. River, situated on plot of land no. 1407, precinct 5, right-bank S., and its breach (as a result of washing away) on 19 May 2010 and led to the subsequent consequences related to this event.
The group may be joined by all persons who may be covered by the class action, i.e. who jointly meet the following conditions:
(…)
Such a person may join the group by filing a written declaration on joining the group within the non-extendable period of three months as of the date of notification of that announcement and by submitting the declaration to the group representative – Z. R. via Law Firm (…) to the address of the Law Firm (…): Street (…). The form of the declaration on joining the group is available on the website of the Law Firm (…). After the lapse of the abovementioned deadline, joining the group is inadmissible.
The Regional Court in Gdańsk 1st Civil Division in the following ruling bench:
Presiding Judge: Małgorzata Zwierzyńska, Regional Court Judge
Judges: Piotr Daniszewski, Regional Court Judge; Karolina Sarzyńska, District Court Judge
having examined on 12th November 2012 in Gdańsk the case filed by group representative (…) against (…) Sp. z o.o. in Gdańsk in bankruptcy for payment, at the hearing in camera,
decides to:
terminate the injunction proceedings.
The Regional Court in Gdańsk 1st Civil Division in the following ruling bench:
Presiding Judge: Małgorzata Zwierzyńska, Regional Court Judge
Judges: Piotr Daniszewski, Regional Court Judge, Karolina Sarzyńska, Regional Court Judge
having examined on the 17th October 2012 in Gdańsk the case filed by group representative (…) against (…) Sp. z o.o. in Gdańsk for payment, at the hearing in camera,
decides to:
suspend the proceedings under article 174 (1) (4) CCP.
- The obligation to submit the Claimant’s deposit in a group proceedings serves to guarantee the procedural balance of the parties and prevents the abuse of the institution of pursing claims in a group proceedings. It should be noted, however, that this argument cannot be the only one taken into consideration when examining the motion.
- Article 24 section 1 of the Act on pursuing claims in group proceedings excludes the application of some of the provisions of the CCP (Polish Code of Civil Procedure), but it does not concern provisions relating to security of claims. This results in the fact that in the matter of securing a deposit, the applicant should make the legal interest in the granting of security plausible (Article 730 § 1 of the CCP).
Thesis no. 2 was questioned by the Court of Appeals in Warsaw in the decision of 20 December 2012, file ref. no. I ACz 2237/12, by which the complaint against the present decision was however dismissed.
- Supplementing the lacks and discrepancies in the scope of joining to the group could have been completed successfully upon the lapse of the period for just joining the group. The acceptance of a different opinion would harm the purposefulness of conducting the group proceedings, which may cover a larger group of persons (group members) and it is difficult to avoid certain oversights or lacks, especially in the scope of notification on joining to the group as well as the need to collect and the meticulously verify the necessary documentation.
- The act on pursuing claims in group proceedings alone includes an autonomous regulation of the institution of a deposit to secure the costs of the proceedings (being a modification of the so-called plaintiff’s deposit provided in Article 1119 of the Code of Civil Procedure) and does not in any way connect the obligation to pay the deposit with the issue of exemption from the payment of court fees.
- The estimation of the potential defendant’s costs of the group proceedings must be based on the value of the subject of the proceedings, calculated uniformly for all of the group members, not the value that is calculated separately for each of them. Only the costs of legal representation may be included in the defendant’s proceedings costs, in the event of the full winning of the case.
- The payment of the deposit in the amount of PLN 43,200, which should once again be specified: solely in cash, will undoubtedly be an impediment for the claimant and will harm the speed and efficiency of the proceedings in the case. Whereas ensuring the efficient and effective court protection in cases examined as group actions is one of the aims of implementing these types of proceedings into the Polish law.
The judgements of the Regional Court in Lodz published on the website were downloaded from the Portal of Judgements of Common Courts (https://orzeczenia.ms.gov.pl/), and then processed by the entity operating this website by adding theses, deleting data of the group members, visual compilation and removing punctuation and literal errors. The judgements have been translated by the entity operating this website.
- Assessing the premises of examination of the case in the group proceedings, the Court examines the statement of claims with regard to the fulfillment of the premises included in Article 6. Article 12 applies in a situation where new participants join to the pending proceedings, who were not covered by the statement of claims, as a result of the issuance of a decision on the announcement on the commencement of group proceedings.
- The factual basis therefore is the same, as each of the members cites being misled and unaware of the conclusion of the agreement despite its factual conclusion, while it is of no importance on what date the agreement was concluded, as that circumstance does not have an impact on the admissibility of the examination of the case in group proceedings. The claim of each of the members should be qualified as based on equal grounds as it is based on identical agreement.
- At the present stage there is a lack of the generation of costs on the side of the defendant, which would create a premise obligating the claimant to secure the costs of the proceedings. The declaration of the defendants alone that they are at the stage of searching for a proxy, does not constitute a sufficient assumption to state that securing the costs of the proceedings is necessary.
The stance included in the thesis no. 1 was questioned by the Court of Appeals in Gdańsk in the decision of 14th May 2013, I ACz 464/13.
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 18th July 2012 in Opole the case filed by J. M. as the group representative [data of 4 group members] and the others against (…) Limited Liability Company in O. for payment,
decides to:
order to announce the commencement of group proceedings before the Regional Court in Opole 1st Civil Division (…) case no. I C 605/11:
’The J. M. representative of the group [data of 13 group members] represented by (…) attorney-at-law of the law office in W. filed a statement of claims against (…) Limited Liability Company in O.
The object of the dispute concerns the claims for payment of tourist trip to K. in July 2011, which was not performed in accordance with the provisions of the agreement (…)
The judgment shall be binding for all the group members.’
The Regional Court in Olsztyn 1st Civil Division in the following ruling bench:
Presiding Judge: Bożena Charukiewicz, Regional Court Judge
Judges: Juliusz Ciejek, Regional Court Judge; Przemysław Jagosz, Regional Court Judge
having examined on 5th July 2012 in O. the case filed by B.S. against (…) ltd in O. for payment
hereby decides to:
- order the announcement on initiation of group proceedings by publishing in the (…) daily the information that a class action to the statement of claims filed by B.S as the representative of the group consisting of: (…) against (…) Ltd. for payment of the amounts arising out of from the decrease in the value of the residential premises acquired from the defendant is pending before the Regional Court in Olsztyn to file ref. no. I C 99/2. The persons whose claims might be examined in these group proceedings may join the group by submitting a written declaration on joining the group to the group representative within 2 months as of the publication of the announcement. For the performed activities, the representative of the group shall receive a consideration in the amount of PLN 4,200, increased by the applicable VAT tax rate, including: in the case of subgroup no. 1 – PLN 300 per person who acquired a residential premises for their personal property, subgroup no. 2: – PLN 300 per each married couple who acquired the premises to the spouses joint property, subgroup no. 3 – PLN 300 jointly from all the group members who acquired a separate residential premises as joint property. In the case new persons join the group, the representative’s consideration shall be increased proportionally according to the rules stated above. The representative shall be entitled to an extra consideration in the form of the costs of legal representation adjudicated or awarded by way of settlement. A legally valid judgment is effective towards all the group members.
- publication of the hereinbefore mentioned announcement shall be contingent on the Claimant’s payment within 7 days of a deposit in the amount of PLN 500.00, under the pain of suspending the proceedings.
- Narrowing of the meaning of “the claim for the protection of consumers” to a very narrow scope does not find its substantiation in the literal wording of the Act (Polish Act on pursuing claims in group proceedings). The claimant derived his claims from the construction of the liability for the improper performance of the agreements, to which consumers were parties, which fulfilled the premise of Article 1 section 2 of the Act.
- The group proceedings must be admissible in relation to every group member, and in a situation in which the claims of certain persons do not bear the features characteristic for the group, the court issues a decision on the rejection of the statement of claims on the grounds of Article 10 of the Act.
The decision was set aside with the decision of the Court of Appeals in Warsaw of 19th October 2012, file ref. no. I ACz 1777/12. The thesis questioned by the Court of Appeals in Warsaw has been italicised.
The Regional Court in Olsztyn 1st Civil Division in the following ruling bench:
Presiding Judge: Bożena Charukiewicz, Regional Court Judge
Judges: Wojciech Wacław, Regional Court Judge; Przemysław Jagosz, Regional Court Judge
having examined on 21st June 2012 at the hearing in a court the case filed by B.S. against (…) for payment
hereby decides to:
examine the case of B.S., the representative of the group composed of: (…), against (…) for payment in group proceedings.
The written substantiation has not been drawn up.
