Decision of the Regional Court in Warsaw 3rd Civil Division of 13th August 2015

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The decision has been amended by the decision of the Court of Appeals in Warsaw 6th Civil Division dated 23rd February 2016, VI ACz 2340/15.

The Regional Court in Warsaw 3rd Civil Division in the following ruling bench:

Presiding Judge: Mariusz Solka, Regional Court Judge

Judges: Joanna Korzeń, Regional Court Judge, Andrzej Lipiński, District Court Judge (delegated)

having examined on 13th August 2015 in W. during the hearing in camera the case filed by K.K., the representative of the group against the Housing Association (…) in W. for payment

re.: the Claimant’s motion for the exclusion of Regional Court Judges: E. W., A.M., J. K.

hereby decides to:

dismiss the motion.

 

Decision of the Regional Court in Piotrków Trybunalski 1st Civil Division of 13th July 2015

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The Regional Court in Piotrków Trybunalski, having examined, on 13th July 2015, the case of I.G. – as a group representative against the (…) University of Business (Wyższa Szkoła Handlowa) in P. for payment, during an in camera hearing

hereby decides

  1. to publish the following announcement in the next edition of the newspaper (…):

“The class action started by I.G. as the group representative against (…) University of Business (Wyższa Szkoła Handlowa) named in P. for undue payment for diploma exams is pending before the Regional Court in Piotrków Trybunalski.

The Court informs about the possibility of joining the group by persons whose claims can be examined in this case. The declaration should be submitted in writing to the group representative I.G. (address for delivery: Law firm of legal counsel T.D., street (…). S.G. – R. 47, (…) – (…) W.) within 3 months from the issuance of this announcement.

The basic remuneration of the Claimants’ legal representation has been set as the amount of PLN 100 (gross multiplied by the number of the group members. An additional fee of 20% (twenty percent) of the awarded amount of payment should also be added. The final judgment in the case is also binding for the members of the group.”

Decision of the Regional Court in Warsaw 3rd Civil Division of 10th July 2015

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The decision has been amended by the decision of the Regional Court in Warsaw 3rd Civil Division dated 15th September 2015, III C 56/15

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:

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 1,441,398/62.

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 was included as a component of the building cost, whereas the Housing Association in reality had not acquired the land, having obtained it free of charge in perpetual ususfruct.

Each person, whose claim may be examined in these group proceedings, 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 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 the 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.

 III. post the announcement in the Court’s building and in the Office D. – U.

Decision of the Regional Court in Kraków 1st Civil Division of 2nd July 2015

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The Regional Court in Krakow 1st Civil Division with the following ruling bench:

Presiding judge:          Marta Woźniak, Regional Court Judge

Judges:                          Agnieszka Włodyga, Regional Court Judge

                                       Ewa Olszewska, Regional Court Judge

having examined on 2nd July 2015 in Krakow at the hearing in camera the group action filed by Z. R. acting as the representative of the group consisting of: [data of 27 group members] against the State Treasury – Voivode Ś., Director of the Regional Board for Water Management in K.; the Ś. Voivodeship; the Poviat of S.; the Municipality of S., for establishment,

decides to:

change the decision of the Regional Court in Krakow 1st Civil Division of 26 June 2014 by admitting the evidence from an opinion of (…) (instead of an opinion of scientific or scientific and research institute) under the following circumstances:

  1. determination of the status of flood protection of the areas located in the area of the defendants’ jurisdiction, including in particular determination of the V. River bed condition and the V. River water flow speed in May 2010; what the impact of the lack of drainage, regulation and dredging works on the risk of flooding of the areas located on the right side of this section of the V. River was and whether the lack of these works contributed to the breaching (as a result of washing away) of the flood embankment in K. on 19 May 2010 and the breach of the embankments of the right tributary of the V. River – the T. River in May 2010; whether and to what extent the condition of the river bed and the condition of the embanked area (overgrown with trees and shrubs) reduced the flow of the flood wave in May and June 2010 and what the impact of the V. River bed condition was; determination of the condition of the embankment areas in the poviat of S. on the water level during the flood wave in May and June 2010 in relation to the height of the flood embankment crown; determination of the causes of the flood embankment breach in K.;
  2. determination of the condition of water drainage facilities located in the area of the defendants’ jurisdiction, including in particular the technical condition of the flood embankment located along the V. River in the poviat of S., in the district of K. in May 2010; whether there were deficiencies in the modernization and maintenance of these embankments in the years of 2001-2010 before the breach of the embankments caused by washing away on 19 May 2010; whether the structure of the right-bank flood embankment of the V. River in the poviat s. at the height of K. was compliant with the legal requirements and the relevant standards; whether and to what extent the condition of the embankment increased the risk of flooding of the areas located on the right side of this section of V. River and contributed to the breach in the flood embankment in K. (as a result of blurring) on 19 May  2010 and the breach in the embankments of the right-side tributary of the V. River – the T. River in May 2010.

Decision of the Regional Court in Warsaw 1st Civil Division of 28th May 2015

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  1. “The same” factual basis of an action (identicalness of factual circumstances) takes place when a bond based on the unity of the damage-causing event occurs. In turn, an “equal” factual basis of claims takes place when many similar factual events occur. However, from the point of view of group proceedings, such a distinction is neutral. This is because each basis which is the same, is at the same time “equal”, hence, for group proceedings to be admissible, meeting the condition of commonality of the factual basis (equal) suffices.
  2. The factual basis of a group action is a conglomerate of factual circumstances equivalent in relation to all members of the group, substantiating the existence of a specific legal relationship.
  3. When individual circumstances prevail over circumstances which are common for group members, it does not permit for an assumption that an common factual basis occurs in the dispute.
  4. The goals that the Polish legislator sets for the group proceedings must constitute the main point of reference for the assessment of introduced solutions – the means used to realise them. The following is commonly mentioned as the fundamental functions (goals) of the group proceedings: economy of the judiciary, standardisation of awards in specific individual cases, extending access to court – ability to assert one’s claims more effectively and faster.

The decision was changed by the decision of the Court of Appeals in Warsaw of 21st September 2015, file ref. no. I ACz 1648/15.

Judgement of the Regional Court in Bydgoszcz 1st Civil Division of 29th April 2015

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  1. If the grounds of tortious and contractual liability coincide, the ruling court is obligated to decide based on which grounds the case should be adjudicated on, with taking into consideration which of the grounds is more advantageous for the injured party or due to the nature of the claim of the cases which may be applicable in a specific case.
  2. Implementation by the bank only a superficial procedure of verification of candidates for bank’s agents provides the grounds to find that the defendant is at fault in selecting an agent, which entails the bank’s liability under Article 429 CC.
  3. Although concluding an agency agreement containing provisions intended to make the agency outpost maximally similar to the bank’s own outposts was admissible, nevertheless, the nature of the activity which was to be conducted in such outposts resulted in the existence of the bank’s particular duties in the scope of ensuring effective supervision of the correct functioning of the agency outposts in order to protect interests of the bank’s clients.
  4. Considering that in the case under consideration the claimant and the members of the group were injured by misleading them in terms of the nature of the agency outpost and causing an erroneous conviction in them that the ‘investment loan’ agreement concluded thereby is a bank product, which was an action contradictory with the provisions of the agency agreement, the bank’s liability may not be at all excluded. In this situation, the defendant bank, under the provision of Article 474 CC, could be held liable for the damage caused by the agent, since it is held liable for his actions as for its own actions.
  5. The fact that some of the injured parties did not at all read the agreement or did so superficially is a circumstance that might provide the grounds to find that they contributed to the arising of the damage in the meaning of Article 362 CC. Yet, this circumstance should be assessed with taking into consideration the circumstance whether the fact of careful reading of the agreement would have impacted a decision to conclude it.
  6. The obligation to redress the damage is a punitive measure specific to penal proceedings and does not exclude a possibility of pursuing claims in civil proceedings against another entity also liable for the damage, especially in a situation where the factual and legal basis of the demand are different.

The judgements of the Regional Court in in Bydgoszcz published on the website were facilitated by the President of the District Court in Bydgoszcz in the letter of 27th August 2019, and then processed by the entity operating this website. The judgements have been translated by the entity operating this website.

Decision of the Regional Court in Warsaw 3rd Civil Division of 27th April 2015

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  1. Article 19 of the Act on Pursuing Claims in Group Proceedings provides that the withdrawal of the statement of claims, waiver, or limitation of a claim as well as the conclusion of a settlement require the consent of more than half of the number of the group members. The court may find the withdrawal of the statement of claims, waiver, or limitation of a claim as well as the conclusion of a settlement inadmissible if the circumstances of the case indicate that the above-mentioned actions contradict the law or good practice or are aimed at circumventing the law or grossly violating the interest of members of the group.
  2. The withdrawal of the statement of claims in the present case was effective due to the fact that it was withdrawn by more than a half of the members of the group to have submitted written declarations in this regard. The circumstances of the case, and particularly the satisfaction by the defendant of the group members’ claims do not indicate that the withdrawal of the statement of claims contradicted the law or aimed at circumventing the law, i.e. that there were no prerequisites from Article 203.4 of the Code of Civil Procedure, and that the withdrawal stood in contradiction with good practice or grossly violated the interest of members of the group, hence, no prerequisites from Article 19.2 of the Act on Pursuing Claims in Group Proceedings existed that would give the Court a possibility to find the withdrawal of the statement of claims inadmissible.
  3. The parties in group proceedings are the claimant – the group representative – and the defendant. The burden of generating funds required to initiate a group action rests with the representative (Article 2.2 of the Act on Court Costs in Civil Cases). The Act does not indicate sources of financing, leaving these issues to the representative and the group’s internal organisation. In consequence, the costs are awarded, depending on the outcome of the trial, from the defendant to the claimant – the representative of the group. The Act does not stipulate encumbering individual members of the group with the costs of the proceedings. Members of the group adopt the position characteristic of a party in the substantive but not the formal meaning, and they do not participate in the proceedings on the principle characteristic of a multi-entity party to the proceedings. Thus, the costs of the proceedings are awarded from or to the representative of the group, while not individual group members.

Decision of the Regional Court in Warsaw 25th Civil Division of 2nd April 2015

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  1. The notion of the “claim”, used in Article 1 of the Act of 17 December 2009 on Pursuing Claims in Group Proceedings appears there in the meaning of a procedural demand. It does not occur in the substantive law meaning, by which one should exclusively understand the possibility of demanding a certain person to act in a specific manner.
  2. We are dealing with an equal (similar) factual basis of claims if many similar factual events occur (similarity of events). This situation may not be reduced only to an assessment whether factual circumstances common for the entire group dominate individual circumstances pertaining to individual members of the group.
  3. Factual circumstances substantiating claims pursued within the frames of group proceedings may fulfil premises of various provisions of civil law, since in relation to the preconditions of group proceedings, there is no requirement for a legal relationship between the claims raised to exist. Various legal bases of tortious liability do not constitute an obstacle in allowing the case to be heard in group proceedings.
  4. The possibility of standardising the value of pecuniary claims in subgroups is a necessary solution for a situation, in which the legal basis of the claims pursued by members of the group are different, which simultaneously may (but does not have to) entail differences in the value of the demanded amount.
  5. It is inadmissible at the stage of the preliminary examination of the admissibility of hearing the case for the court to relate directly to the assessment of content-related prerequisites of the action and engage in evaluative considerations concerning, for example, circumstances substantiating the existence and type of the causal link between the damage and the defendant’s conduct. Verification of the circumstances provided in the substantiation of the statement of claims that justify the allowing of the claim is the object of evidentiary proceedings at the stage of content-related examination of the case.
  6. An excessively narrow interpretation of provisions of the Act of 17 December 2009 on Pursuing Claims in Group Proceedings, leading to the elimination of its applicability to claims for which it was created, is obviously inadmissible.

Decision of the Regional Court in Warsaw 24th Civil Division of 2nd April 2015

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The Regional Court in Warsaw, 24th Civil Division, in the following ruling bench:

Presiding Judge: Paweł Pyzio, Regional Court Judge

Judges: Agnieszka Bedyńska-Abramczyk, Regional Court Judge, Jacek Tyszka, Regional Court Judge

having examined on 2nd April 2015 in Warsaw the case filed by the District Consumer Ombudsman (…) against (…) joint stock company with the registered office in W. for payment,

decides to:

  1. reverse the decision of 5th March 2015;
  2. order the following announcement in the (…) daily:

’ANNOUNCEMENT ON COMMENCEMENT OF GROUP PROCEEDINGS

Under the Act of 17th December 2009 on Pursuing Claims in Group Proceedings, the proceedings  are pending before the Regional Court in Warsaw, 24th Civil Division. The case was initiated by the Poviat Consumer Ombudsman in the Poviat of (…) against (…) joint stock company in W., file ref. no. XXIV C 554/14. Currently, the action is participated in by 28 members of the group whereas the value of the dispute amounts to PLN 470,435.69 .

The Poviat Consumer Ombudsman in the Poviat of (…) as the group representative filed a statement of claims on behalf of group members against (…) joint stock company with registered office in W. for the return by the Defendant of the amounts collected thereby from the group members on the basis of unlawful contractual clauses in life insurance contracts with the capital insurance fund with statutory interests accrued as of 8th May 2014 until the date of payment.

(…)’

Decision of the Regional Court in Warsaw 25th Civil Division of 9th March 2015

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The decision was reversed in part (in the scope of points 1 and 4) by the decision of the Court of Appeals in Warsaw 6th Civil Division of 7th September 2015, VI ACz 1012/15.

  1. We are dealing with “the same” (identical) factual basis of the pursued claims when the identicalness of 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. The notion of “factual basis” should be understood as a specified set of factual status elements which is invoked in order to prove the claims.
  2. The same factual basis of the claims occurs when obtaining legal protection is connected with an identical situation or event. In turn, the same factual basis is spoken of when claims are derived only from similar situations and events, which corresponds with the notion of the similar (equal) factual basis being an element of formal joint participation in civil proceedings.
  3. We are dealing with “equal” factual basis when many similar factual events take place. The basic set of facts constituting the basis for the occurrence of the disputed legal relationship and a specific claim must be analogous. Slight differences between individual bases of claims may exist, however, the relevant factual circumstances must substantiate a demand common for all the claims.
  4. The substance of group proceedings is the commonality manifested in the demand which must be typical (common) for all the claims, and is derived from the same legal or factual situation of all members of the group. 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 on Pursuing Claims in Group Proceedings, 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.
  5. Raising alternative claims in group proceedings leads to a situation where the court determines whether each of the raised claims is common for all members of the group; otherwise, the guiding goal of the group proceedings would be forfeited, whereas the proceedings themselves would be reduced to deciding on various claims of 10 people (members of the group) against one defendant.
  6. In the case of the definition included in Article 221 of the Civil Code, the linguistic interpretation fails; hence, this provision must be interpreted by means of a systemic and teleological interpretation. In the light of the definition of the “economic activity” it must be assumed that the fundamental condition of attributing a given act in law the characteristic of “being related to the conducted economic activity” is for this act to be taken by the entity performing it in order to achieve an profit making objective. The moment decisive for the recognition of a given natural person as a consumer, is the moment of performance of the act in law.
  7. In group proceedings, a statement of claims is treated as a whole and rejecting it only in relation to certain members of the group is not possible.

The decision was reversed by the decision of the Court of Appeals in Warsaw of 7th September 2015, file ref. no. VI ACz 1012/15.