The decision was reversed in part (in the scope of point 2) by decision of the Court of Appeals in Krakow of 7th December 2011, file ref. no. I ACz 1235/11. The thesis’ questioned by the Court are marked in italics.
- In Article 1 section 1 (unlike in Article 2 section 3), the Act uses the term claim in the procedural meaning. Against the background of the Act, homogenous claims are claims arising from the same type of legal relationship. This does not mean sameness of specific standards constituting the legal basis of the specific claims (substantive law claims). The notion of homogeneity thus understood, litigation claims with their source in one legal relationship, even if various substantive law claims were to arise therefrom, should be recognised as homogenous.
- A factual basis of the claim should be understood as the basic aggregate of facts constituting the basis for the arising of a contentious legal relationship and a specific claim. The scope of the factual basis does not extend to factual circumstances impacting the value, objective scope, or maturity of claims; these elements may, but do not have to be covered by the factual basis of the action.
- The requirement of the same or similar (equal) factual basis does not mean the requirement for all the elements of the factual status to be the same or similar (equal) in the case of each claim. It is enough if there is an element common in the scope of all factual circumstances constituting the basis of the group members’ claims.
- The defendants’ behaviours in a varying degree contributed to the bursting of the flood blank in Koćmierzów, and thus to the effect – damage to the group members’ assets, but they jointly constitute a single tort perpetrated by public authorities. The fact that not all defendants participated in the tort at specific stages thereof does not eliminate their joint and several liability for the damage.
- The defendants’ tort is of complex nature, it consists of an aggregate of interrelated actions and omissions, distributed in time, which led to inflicting damage onto multiple entities. A statement that to adopt the precondition of commonality of the factual basis of the claims is necessary for all group members to derive their claims from the same action or the same omission or the same action and omission of the defendants and that each of the group members should seek claims for compensation of damage of the same type (only damnum emergens or lucrum cessans) does not deserve to be approved. As all claims of the group members’ arise from such a complex tort, then it should be assumed that they are based on the same factual basis and the group members share a bond arising from the unity of the event which resulted in the damage.
- The criterion for separating cases in the frames of categories of claims arising from tort is the legal basis of claims. A group proceedings is admissible in the cases regarding claims pursued on the grounds of provisions of the Civil Code on tort, regardless of the type of events which the Act associates compensatory obligations with and regardless of the principle of liability.
- Common circumstances of the case considered at the standardisation of claim values should be referred to the precondition of commonality of the factual basis (Article 1 section 1 of the Act). However, it is a notion of a meaning narrower than “the same or similar (equal) factual basis”.
- The estimates of the costs of the proceedings are the necessary condition of the motion for security deposit, since the court in determining deposit value should bear in mind a probable total of the costs to be incurred by the defendant.
- The aim of obtaining the verdict establishing the defendant’s liability is to obtain a precedent for possible individual actions of the group members for payment, or a basis for the conclusion of a settlement between the group members and the defendant. The claim included in the statement of claims understood in such a way is of a pecuniary nature, despite the fact that it does not constitute a claim for payment. It is not necessary to indicate the amount of the claim of each of the group members in the statement of claims, and Article 2 section 3 of the Act (Polish Act on pursuing claims in group proceedings) constitutes an exception to the rule of indicating and standardising the amount of the claims of the group members resulting from Article 2 section 1 and Article 6 section 1 point 3 of the Act.
- It may be assumed that in compliance with the rule of the freedom of contracts (Article 3531 of the Civil Code), group members may entrust the function of the group representative to the consumer ombudsman from any city or district in the country. The consumer ombudsman is authorised, but not obligated to be the group representative and if he expresses consent to accept this function, then the issue of the territorial scope of his operation is without meaning for the further proceedings.
- The procedural relations between the group’ representative and the group members were regulated on principle of subrogation, which means that the group representative conducting the proceedings in his own name, but on behalf of all of the group members. The group members are not parties to the group proceedings.
- The premise of the homogeneity of the claims should be understood in such a manner that the requests (demands) resulting from them are common for all of the group members. The statement of claims must therefore include the request (demand) to grant the same form of legal protection for all of the group members.
- The very factual basis of the statement of claims, however, constitutes the basic (initial) aggregate of facts substantiating the claim. The same factual basis of the statement of claims takes place when obtaining legal protection is connected with an identical situation or event. Whereas it is possible to speak of equal factual basis in a situation in which the claims are derived from merely similar situations and events.
- The notion of cases regarding consumer protection also includes the establishment of contractual liability, connected with the issue of the non-performance or the improper performance of the obligation in the meaning of Article 471 of the Civil Code. In this case, we are dealing with the improper performance of obligations resulting from legal actions in the form of consumer contracts.
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.
- Regardless of the possibility to seek redress of the damage, which stems from the provisions, which Article 24 section 2 of the Civil Code makes a reference to, the means of personal rights protection may be divided into proprietary and non-proprietary, which does not change the fact that they will be regarded by claims which should still be recognized as those being aimed at the protection of personal rights. The claim on pecuniary satisfaction is therefore qualified as one of the proprietary means of protection of personal rights. Since in the statement of claims itself it was ascertained that the incurred detriment (harm) is to be the source of the claims, then there can be no doubt that these claims will regard the protection of personal rights, and therefore their pursuit in group proceedings is excluded.
The Regional Court in Tarnów, 1st Civil Division in the following ruling bench:
Presiding Judge: Marek Syrek, Regional Court Judge
having examined on 21st of January 2011 in Tarnów, at the hearing in camera, the case filed by the Poviat T. Consumer Ombudsman acting on behalf of (…) A. S.A. in W. for the payment of performance
orders to:
return the complaint.
- In accordance with Article 16 section 3 in conjunction with Article 186 section 1 of the Water Law Act, only in the event of a case initiated against the owner of water or owner of water equipment in relation to the flooding of land during a flood as a result of owner’s lack of adherence to the provisions of the act, is one entitled to compensation (on the terms and conditions indicated in the Water Law Act), which can be pursued directly by means of seeking redress to court without the need of exhausting the manner of administrative proceedings.
The decision was set aside with the decision of the Court of Appeals in Wrocław of 29th July 2011, file ref. no. I ACz 1112/11.
The above information was prepared based on public information provided by the President of the Regional Court in Opole.
The rulings of the District Court in Opole posted on the website were facilitated by the President of the District Court in Opole. The texts of the rulings were processed by the entity operating this website by adding theses, visual compilation and removing punctuation and literal errors. The rulings have been translated by the entity operating this website.
