The Regional Court for Warsaw-Prague in Warsaw 3rd Civil Division in the following ruling bench:
Presiding Judge: Ewa Dietkow, Regional Court Judge
Judges: Beata Karczewska-Mazur, Regional Court Judge, Radosław Olszewski, Regional Court Judge
having examined on 28th October 2014 in Warsaw at a hearing in camera in a closed session the case filed by S.P. against (…) Ltd. in Z. for payment
hereby decides to:
establish the following group membership:
Subgroup 1:
- [2 persons]
- [1 person]
- [1 person]
Subgroup 2:
- [2 persons]
- [2 persons]
- [2 persons]
Subgroup 3:
- [2 persons]
- [2 persons]
- [2 persons]
Subgroup 4:
- [2 persons]
- [1 person]
Subgroup 5:
- [1 person]
- [1 person]
- [1 person]
Subgroup 6:
- [1 person]
- [2 persons]
Subgroup 7:
- [2 persons]
- [1 person]
Subgroup 8:
- [2 persons]
- [2 persons]
Subgroup 9:
- [3 persons]
- [2 persons]
Subgroup 10:
- [2 persons]
- [1 person]
Subgroup 11:
- [2 persons]
- [2 persons]
Subgroup 12:
- [1 person]
- [1 person]
- [1 person]
Subgroup 13:
- [2 people]
- [1 person]
Subgroup 14:
- [1 person]
- [3 persons]
- In group proceedings the demand must be typical for all the claims. Therefore, the demand raised in group proceedings by the group’s representative must be typical for the entire group he or she is representing. The indicated condition means that a legal or factual situation of the group members must be 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.
- The group’s representative is obligated to prove a given person’s membership in the group before the court. It is a prerequisite allowing for the inclusion of a specific person within a group bringing a group action in cases on pecuniary claims.
The decision was reversed by the decision of the Court of Appeals in Warsaw of 31st March 2015, file ref. no. I ACz 166/15.
- The statute of limitation cannot be the grounds for rejecting a class action because the issue of limitation is a substantive matter to be examined only after establishing that a class action is admissible.
- The condition for initiating group proceedings regarding a cash claim is for all group members, not merely the representative of the group, to give consent to the Court for lump sum damages. Should it be assumed that the Group Representative may submit such a declaration, there would be no obstacle to find that it had been already incorporated in the contents of the statement of claims itself and other pleadings indicated the amounts sought for, without the necessity of submitting a separate document.
The Regional Court in Szczecin, 1st Civil Division in the following ruling bench:
Presiding Judge: Wojciech Machnicki (rapporteur), Regional Court Judge
Judges: Halina Musiał, Regional Court Judge, Tomasz Sobieraj, Regional Court Judge
having examined on 6th October 2014 in Szczecin the case for payment filed by K. P. – the representative of the group in the class action against the State Treasury – (…) as a result of the Defendant’s appeal against the decision of the Regional Court in Warsaw dated 13th October 2015, file ref. no. XXIV C 500/14
decides to:
hear the case in group proceedings.
- Deciding on the admissibility of group proceedings is the first stage of the proceedings and constitutes the form of a unique prejudication, unrelated to the content-related assessment of the legitimacy of the claims pursued in the statement of claims.
- The Act on Pursuing Claims in Group Proceedings does not contain a definition of a consumer protection case or a definition of a consumer. Therefore, invoking Article 221 of the Civil Code, it is fitting to indicate that a consumer is considered to be a natural person performing an act in law not directly related to their economic or professional activity.
- The role of the group representative filing a statement of claims in a group proceedings consists in providing a convincing substantiation that pursued claims of all group members, grounded on many legal bases, are based on the same or equal factual basis.
- If each of the members of the group identifies the damage inflicted thereupon by the defendants with the loss of funds paid to the company in performance of the agreements concluded therewith and predicted profits, then from this point of view, the type of agreements and conditions of their conclusion become a substantial, differentiating circumstance of the factual status.
- The legislator rendered the notion of a “subgroup” more precise – it covers at least 2 persons whose claims, due to varied circumstances concerning individual members of the group, may not be standardised in the frames of a group. A subgroup is comprised of a set of parties whose claims, due to the occurring diversification (rendering standardisation within the group impossible), are standardised by forming a separate set of parties (called a subgroup).
- The standardisation of claims in the frames of a subgroup consisting solely on the fact that group members’ claims are being adjusted to the value of the lowest of them, without indication of other than the value of the damage criteria for claims standardisation, in the face of many differentiating factual circumstances existing in the case, seems insufficient.
- The withdrawal of a motion for obligating the claimant to enter a deposit is admissible. In the event the defendant withdraws the motion before the decision by virtue of which the subject motion was examined becomes final or is challenged, the court of first instance shall reverse the decision and discontinue incidental proceedings initiated by the motion, if it finds the withdrawal admissible.
- From the point of view of the hypothesis of Article 8.2 sentence 1 of the Act on Pursuing Claims in Group Proceedings, the performance of the first procedural action by the defendant is of significance. However, in this case what motivated the defendant in performing the act, or whether this act evoked any response of the court is of no significance. The legislator did not differentiate between the strictly formal activities and adopting a content-related position in the case.
- Raising a demand by the defendant to obligate the claimant to enter a deposit for securing the costs of the proceedings later than at the first procedural act shall result in the rejection of the motion.
The decision was changed by the decision of the Court of Appeals in Warsaw of 3rd June 2015, file ref. no. VI ACz 479/15.
- In order to speak of the sameness of the factual basis substantiating a possibility of pursuing claims in group proceedings, prerequisites for the emergence of claims should be common for all participants of the group.
- Diversification of the factual circumstances impacting the form and extent of the damage makes it impossible to establish the sameness of the factual basis. Such a diversification occurs if damage of each member of the group may have emerged in a different form – depending on the factual status related to a specific member of the group.
- If the claimants’ claims remain in no connection with the need to protect the consumer against a stronger participant of transactions, i.e. the claimant does not demand special protection due to his status as a consumer, but only seeks compensation in relation to the emergence of premises of compensatory liability, then such a case is not a consumer protection case, even if the claimants’ claim is contained in the model contract which may be subject to assessment in the scope of abusiveness.
- On the grounds of the Act on Pursuing Claims in Group Proceedings, it is of no significance whatsoever whether claims arise from the same or from different legal relationships. The provision of Article 1.1 of the Act provides only that claims should be based on the same or equal (similar) factual basis. In the case a diversification of the situation of the members of the group undoubtedly occurs in the scope of such circumstances indicated by the defendant as: different content and terms of insurance agreements, application of various standard contract terms, participation of various agents and persons performing agency activities, or various manners of realisation of substantial information obligations by parties brokering the conclusion of agreements. These circumstances may not, however, influence the assessment of homogeneity of the factual basis of the action. It should be emphasised that in the case being heard, the issue is the agreements concluded with the use of the same standard terms including a contentious clause concerning the insurer’s right to collect glaringly extortionate fees constituting the entirety or a part of the policy account value in the event of termination of the insurance agreement. In truth, each of the agreements included an identical provision specifying the value and the manner of calculating the policy redemption fee. Also, the circumstance that each member of the group could differently understand the meaning of the contentious clause is of no significance for the identicalness of the factual basis of the action.
- The consumer ombudsman was awarded the capacity to be a party in group proceedings directly in Article 4.1 in conjunction with Article 2.2 of the Act on Pursuing Claims in Group Proceedings, i.e. in consumer protection cases. The content of the quoted provisions corresponds in this scope with the content of Article 42.2 of the Act on Competition and Consumer Protection and Article 633 of the Code of Civil Procedure, under which in consumer protection cases, the district (municipal) consumer ombudsman may initiate actions on behalf of citizens. It is precisely the provisions of the procedural law nature that are decisive for the consumer ombudsman’s capacity to be a party in court proceedings and its position in litigation. The consumer ombudsman’s capacity to be a party in court proceedings is independent of the territorial scope of his or her operation. Group members may entrust the function of the group representative to a consumer ombudsman from any city or district in the territory of the state.
- An agreement concluded by a group representative – a district consumer ombudsman – with an attorney does not create any financial obligations on the part of the ombudsman or a local territorial authority that employs him or her. Hence, the conclusion of such an agreement did not require a separate consent on the part of the district treasurer or a person authorised thereby.
- The deposit is to serve the purpose of securing the defendant’s potential claim for the reimbursement of the costs of proceedings, in the event of difficulties in enforcing them from the group’s representative. The defendant bears the burden of proof that the non-establishment of a deposit for securing future claim for awarding the reimbursement of the costs of proceedings will render the execution thereof impossible or create substantial difficulties in the execution thereof.
- The commonality of the basis of pursued claims substantiates the possibility to join claims in a single group action. The entities in the group are characterised by a specific bond of a subjective and objective nature. The subjective bond pertains these members of the group who suffered damages as a result of the perpetrator’s single action. In a class action these persons pursue claims form a single entity (violator). In turn, subjective uniformity is related to the type of violation which results in pursuing claims jointly by the group becoming substantiated and possible. The bond existing between the group’s members must be based on the same or equal factual basis. Claims based on an common factual status are claims which share the same factual basis (a sensu stricto precondition) or claims sharing relevant factual circumstances (a sensu largo precondition). The indicated condition means that the legal or factual situation of the group’s members must be equal. Obviously, there may be insignificant differences between individual grounds of claims, however, it is necessary for the relevant factual circumstances to substantiate the demand common for all the claims.
- The Act on Pursuing Claims in Group proceedings does not regulate the costs of proceedings separately. Therefore, general provisions concerning the costs of the proceedings and general provisions concerning the reimbursement of the costs of proceedings should be applied in this scope.
- The introduction of a deposit for securing the costs of proceedings into group proceedings is meant to guarantee the defendant reimbursement of incurred costs from the claimant. The purpose of regulation by the legislator, within the group proceedings, the institution of the deposit for the securing of the costs of proceedings is protection of the defendant’s interests against unsubstantiated actions. Although the deposit for securing the costs of the proceedings is an institution facultative in its nature, it limits the claimant in the initiation of group proceedings. Therefore, obligating a claimant to submit a deposit for securing the costs of the proceedings should be consider as a factor significantly limiting the use of class actions.
- The defendant is not entitled to demand the submission of a deposit when the part of the claim recognised thereby is sufficient to secure the costs of proceedings. The indicated provision is applied when the defendant recognised a part of the claim raised by the claimant.
The decision was reversed by the decision of the Regional Court in Warsaw of 25th September 2014, file ref. no XXV C 530/14.
- The Legislator did not specify the criteria of examination the request based on Article 8.1 of the Act on Pursuing Claims in Group Proceedings, leaving the decision at the discretionary, but not arbitrary recognition of the court. The court should refer to certain circumstances of the particular case. The defendant demanding the payment of a deposit should indicate and prove the factual circumstances justifying such a decision.
- The obligation to pay the deposit to secure the costs of the proceedings could be justified especially, if one had proven that there are circumstances indicating a high degree of likelihood that in the event of losing the case, the claimant would avoid paying the costs of the proceedings awarded to the defendant – especially that the claimant would hide its wealth in order to impede or avoid the debt enforcement proceedings. The argument for such a decision would also be that the predicted and specified costs of the defendant are so high that the lack of its reimbursement would threat its financial liquidity and that there is a real threat of not reimbursing the costs by the claimant, even due to faultless reasons.
- In principle, the case is examined in group proceedings by the court sitting with three judges. However, a decision on the deposit is a formal one, not concerning the substance of the case, which can be issued in closed session. Therefore, the decision may be issued by the court sitting as a single judge.
The decision was reversed by the decision of the Regional Court in Warsaw of 25th September 2014, file ref. no. XXV C 530/14.
