Decision of the Regional Court in Warsaw 1st Civil Division of 1st December 2015

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The decision was fully amended by the Decision of the Court of Appeals in Warsaw, 1st Civil Division of 8th April 2016, file ref. no. I ACz 534/16 by accepting the case in group proceedings.

  1. If pecuniary claims are the subject of a dispute, the Act on Pursuing Claims in Group Proceedings allows the possibility of pursuing them in group proceedings, only if for each of the claimants they were standardized on the basis of shared circumstances of the case.

Decision of the Regional Court in Szczecin 1st Civil Division of 23rd October 2015

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  1. Indication of specific allegations pertaining to particular persons would only make it possible to state whether these allegations require taking concrete evidence (taking the situations regulated in Articles 228, 229, 230 and 231 CCP into consideration, in which taking evidence is not required), to determine who the person bearing the burden of proof relating to specific circumstances of the case is (irrespective of the general rule laid down in the Article 16 of the Polish Act on Pursuing Claims in Group Proceedings) and to state what conclusions are to be drawn from a potential lack of such evidence.
  2. Group proceedings lack grounds for a court to allow the motion to address the National Archive for sending over class sections. According to Article 16 of the Act on Pursuing Claims in Group Proceedings, the duty to deliver all the necessary documents rests, with the representative of the group.
  3. The grounds for recognizing the persons designated as group members as the legal successors of the late shareholders are confirmations of the acquisitions of the inheritances and inheritance notarization acts (Article 1025 (1) CC). From the appended confirmation of the acquisition of the inheritance results a legal presumption that the indicated persons are the shareholders’ heirs whose shares are indicated in the class sections of shares (Article 1025 (2) CC).

The Regional Court in Szczecin, 1st Civil Division in the following ruling bench:

Presiding Judge: Wojciech Machnicki, Regional Court Judge (rapporteur)

Judges: Halina Musiał, Regional Court Judge, Tomasz Sobieraj, Regional Court Judge

having examined on 23rd October 2016 in Szczecin at the hearing in camera an action for payment filed by K. P. – the representative of the group in the class action against the State Treasury – the Minister for the State Treasury

decides to:

establish the following composition of the group: [2166 group members].

Decision of the Regional Court in Warsaw 2nd Civil Division of 23rd October 2015

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The decision was reversed by the Court of Appeals in Warsaw 1st Civil Division on 10th March 2016, file ref. no. I ACz 91/16 as follows: the Court decides to hear the case in group proceedings.

  1. Group proceedings procedure was established for cases with significantly approximate factual statuses. The level of similarity should be such that all the circumstances essential for settlement in the case are similar if not outright identical.
  2. In order to provide efficiency of the group proceedings, such proceedings must be based on the similar factual circumstances. This similarity should take into account the possibly identical assessment in context of a settlement as to the merits. Hence, no differences may exist which would expressly differentiate this assessment in reference to each member of the group. This applies to all factual circumstances concretising the hypothesis of the applicable legal norm.
  3. In group proceedings, the court decides on admissibility of the action in the form in which it was brought before the court and he court has no power to modify the statement of claims even if by selection of the particular elements fit to be examined in group proceedings and rejection of the remaining ones. Hence, it is the statement of claims in the form lodged with the court that is assumed to be the object of the assessment, obviously with taking into account actions related to supplementing formal defects.
  4. The group proceedings are a specific kind of civil proceedings. The inadmissibility of group proceedings does not preclude the possibility of pursuing a claim in ordinary civil proceedings. The inadmissibility only signifies an impossibility of hearing a case under provisions of the Act on Pursuing Claims in Group Proceedings while pursuing claims in group proceedings could be more convenient for the parties to the dispute. It, however, does not in any way preclude access to justice or breach the rights stemming from the Constitution or international law.

The Regional Court on Warsaw 2nd Civil Division, in the following ruling bench:

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

Judges:                   Sylwia Urbańska, Regional Court Judge; Katarzyna Waseńczuk, Regional Court Judge

having examined on the 9th October 2015 in Warsaw at the hearing the case filed by the Municipal Consumer Ombudsman in the City Hall of the City of S. acting as a group representative of the group consisting of (names of group members) against (…) joint stock company in W. for ascertainment

decides to

  1. reject the statement of claims;
  2. award from the City of S. to (…) joint stock company in W. the amount of PLN 7,217.00 as the return of the cost of the proceedings.

Decision of the Regional Court in Warsaw 21st Labour Division of 21th October 2015

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  1. In the event the amount of the statement of claims of each group member includes both compensation for the lack of valorisation of remuneration by the average salary increase annual rate, and the statutory interest compensated on the day of filing the claim, due for the delay in payment of the basic claim, the claimant admittedly raises monetary claims, however, in this case the procedural claim is based on two different substantive grounds, therefore the claim of each claimant is partially based on a different factual and legal basis.
  2. The raising of in fact two different pecuniary claims by each claimant (compensation and compensated statutory interest) leads to a violation of Article 2(1) of the Act on Pursuing Claims in Group Proceedings.
  3. It seems that the rationale for regulating group proceedings does not include the possibility of pursuing two different monetary claims by standardising them not by the common circumstances of the case, but by limiting the value of the compensated statutory interest.
  4. In a situation in which the factual and legal basis of the pursued claims and their homogeneous nature are the same for all of the claimants, all these claims need to be standardised if the Claimants decide to pursue them in group proceedings, without the possibility of dividing them into smaller groups, conditioned only by different amounts of the same claims.
  5. The potential undervaluation officers’ remuneration (specified in the legal provisions) related to the lack of valorisation in 2009 and 2010 should be the object of a dispute concerning remuneration, without the need to refer to tortious liability which makes it impossible to examine the dispute as a class action.
  6. It is not possible to attribute unlawfulness to the Minister for Internal Affairs’ omission of the valorisation of salaries of the Border Guard officers from 2009-2014, since the defendant was bound by the provisions of the budget law, the compliance with the Constitution of which raises no doubts in connection with the stance of the Constitutional Tribunal.
  7. Where the circumstances referred to in the statement of claims correspond to the statutory grounds of admissibility of a class action, but the factual circumstances substantiating the claim are not related to a tort, the actions is subject to dismissal.

The Regional Court in Warsaw 21st Labour Division in the following ruling bench:

Presiding Judge: Sylwia Kulma, Regional Court Judge

Judges: Monika Sawa, Regional Court Judge, Grzegorz Kochan (rapporteur), District Court Judge (delegated)

having examined on 21st October  2015 in Warsaw the case filed by  (…) against the State Treasury – Ministry for Interior in Warsaw for compensation

hereby decides to:

dismiss the statement of claims.

Decision of the Regional Court in Warsaw 24th Civil Division of 13th October 2015

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  1. The factual basis of an action in group proceedings is a conglomerate of statements indicated by a group’s representative in the substantiation of the statement of claims, from which the claim of each of the group members expressed therein is derived. A similar basis of claims pursued in an action may be spoken of when the basic factual circumstances comprising the basis of the demand in the statement of claims are equal.
  2. Conclusion by each of the members of their own, i.e. not the same as the others, agreement with the defendant excludes the existence of the same factual basis of the claim pursued in the action.
  3. A similar basis of claims pursued in the action may be spoken of when the basic factual circumstances comprising the basis of the demand in the statement of claims are equal.
  4. On the basis of the Act on Pursuing Claims in Group Proceedings, it is of no significance whether claims arise from the same or different legal relationships.
  5. In the case being considered, the issue is the agreements concluded with the use of the same standard terms including a contentious clause defining the principles for determination of the value of amounts to be paid to members of the group and amounts to be collected by the defendant from the group members’ funds originating from redemption of fund participation units purchased with the regular premiums in the event of termination of the life insurance policy agreements with the capital fund for reasons other than death. The template designation itself, as invoked by the defendant, does not prejudge the different content of individual provisions. Indeed, each of the agreements did contain the same provision defining the value and the manner of determination of amounts to be collected by the defendant.
  6. In the case under consideration no such ‘circumstances of conclusion of the agreement’ are presented which would substantiate the need to take evidence from testimony of all group members. In the statement of claims the claimant does not invoke the circumstance of conclusion by the group members of insurance agreements as a result of their having been misled or hoaxed which would substantiate the taking of the above-mentioned evidence in order to examine the motivating process or group members’ individual characteristics such as education, occupation, life experience, and similar circumstances. This is because a relevant circumstance in the case being considered is the very fact that the group members concluded with the defendant agreements containing contentious clauses which for the defendant constitute a basis for collecting the amounts previously paid in advance by the members of the group and which, according to the said members, are glaringly extortionate.

Decision of the Regional Court in Warsaw 16th Commercial Division of 6th October 2015

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The Regional Court in Warsaw, 16th Commercial Division in the following ruling bench:

Presiding Judge:     Magdalena Śliwińska – Stępień, Regional Court Judge

Judges:                    Marta Sadowska, Regional Court Judge, Cezary Skwara, Regional Court Judge

having examined on 6th November 2015 in Warsaw at the hearing in camera the case filed by (…) Ltd in W. against (…) joint stock company in W. for compensation in a class action following the claimant’s motion to exclude judges

hereby decides to:

dismiss the motion.

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.

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