- The absence of the Defendant’s allegations does not signify that all the entities indicated by the representative of the group must be included within the group. This is because the court is in each case obligated to assess the preconditions of joining the group, whereby this can be carried out solely on the basis of the procedural material available in the proceedings.
- A resolution of the Poviat Management Board is an internal act, and not a declaration of intent submitted in foro externo, and thus submission thereof does not constitute an effective declaration on joining the group.
- There are no grounds to apply Article 165 (2) of the Polish Code of Civil Procedure to the declaration on joining the group directly. A possibility of recognizing a declaration on joining the group, which after all is addresses not to court but to the group representative to be a procedural letter also causes a fundamental doubt. Article 165 (2) of the Polish Code of Civil Procedure assumes a legal fiction exclusively in the scope pertaining to the filing of a letter with court and not to passing it to another addressee.
The Regional Court in Warsaw 2nd Civil Division in the following ruling bench:
Presiding Judge: Tomasz Wojciechowski, Regional Court Judge
Judges: Sylwia Urbańska, Regional Court Judge, Katarzyna Waseńczuk, District Court Judge (delegated)
having examined on 5th July 2013 during the hearing in camera the case filed by the Poviat (…) as the Representative of the group of Poviats: (…) against the State Treasury – the Minister of Transportation, Construction and Maritime Economy represented by the Office of the Attorney General of the State Treasury for establishment
hereby decides to:
- establish that Poviats: (…) are members of the group in the group proceedings to the file ref. no. II C 593/12;
- establish that Poviats: (…) are not members of the group in the group proceedings to file ref. no. II C 593/12.
- In terms of the credit value, time of duration of the agreement, fixed interest rates, and commission, the concluded agreements were diversified, and for this reason full standardisation of claims for personal performance, i.e. claims for payment, was not possible. Whereas due to the equal factual and legal basis of the claims, limiting the statement of claims to the demand for the establishment of the defendant’s contractual liability was substantiated. After the issuance of the verdict with the characteristics of a precedent and establishing defendant’s liability, individual group members shall have an opportunity to realise in court cases in the full scope the claims they are entitled to, or strive to prevent the dispute with the defendant in another manner, by concluding a a settlement.
- The members of the group are claimants only in the material sense. In turn, in the formal sense the claimant is the group representative appearing in the litigation on the subrogation principle (procedural substitution) arising from the Act (Polish Act on pursuing claims in group proceedings).
- In such a procedural arrangement, when the group representative is the claimant in the procedural meaning, then the return of the costs of the proceedings may be awarded to his benefit regardless of the character and provisions of the agreements, providing for the need to pay by the group members of the remuneration for the group representative or legal counsel. The legislator does not stipulate for the possibility to charge the costs of the litigation to individual members of the group, which is a reflection of depriving them of their procedural powers. It does not, however, waive the possibility to agree on the principles under which the members of the group will be obligated in the internal relationship to cover the costs to return which the group representative was obligated or the securing of performance of this obligation.
- The remuneration of the group representative’s legal counsel (including the success fee) is not included within the costs of litigation and is not reimbursable by the adversary under Article 98 para 1 and 3 of the CCP (Polish Code of Civil Procedure).
- Awarding in the group proceedings a fee for legal counsel’s services on the grounds of legal substitution, the Court takes into account the required work outlay of the legal counsel, as well as the character of the case and the contribution of the legal counsel’s work to clarifying and settling the case. This fee must not exceed the six-fold minimal rate or exceed the value of subject of the case. The provision of para 17 of the regulation under which for defending or representing several people the fee is collected from each of these persons does not apply in this case since, formally, legal representation pertained only to the representative of the group.
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.
- Consumers are entitled to demand the redress of damage in the form of an wasted vacation from a tour operator. Damage in the form of the loss of pleasure expected in relation to travel remains exclusively within the sphere of impressions and feelings, it is often a purely mental phenomenon devoid of a financial or commercial element.
The decision was reversed by the decision of the Court of Appeals in Gdańsk 1st Civil Division dated 14th November 2013, case file no. I ACz 1162/13.
The decision of the Regional Court in Gdańsk 9th Commercial Division, in the following ruling bench:
Presiding Judge: Dariusz Kardaś, Regional Court Judge
Judges: Marek Miastowski, Regional Court Judge; Dorota Majerska-Janowska, acting Regional Court Judge
having examined on 28th June 2013 in Gdańsk at the hearing in camera in group proceedings a case filed by group representative (…) against (…) for payment
decides to:
dismiss the motion to secure the claim.
The ruling was reversed by the judgement of the Court of Appeals in Wroclaw dated 20th November 2013, file ref. no. I ACa 1232/13.
- The provision of Article 417 CC provides for compensatory liability for a damage caused by a tort defined as ‘unlawful activity or cessation thereof in exercise of public authority’. It constitutes a general basis for liability of the public authorities for their acts in their sovereign capacity, which does not apply or applies to a limited degree only where the legislator determines consequences of certain acts of public authorities by means of a separate regulation.
- Any and all actions undertaken both by government administration bodies and units of territorial self-government related to the flooding of May 2010 were acts from the scope of exercise of public authority.
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.
It is beyond any doubt that a housing cooperative is a business entity and in the scope of its operations aimed at broadly understood satisfaction of its members’ residential needs it must be afforded identical treatment to that afforded to an entrepreneur, with this reservation that the housing cooperative’s business activity is not related to the satisfaction of residential and other needs of its members and their families. The parties to the contentious agreement, the subject of which was the supplementation of the residential contribution per a specific residential premises in connection with the renovation of the residential building, surely did not appear in the role of an entrepreneur and consumer, whereas the obligational relationship did not concern the area of business activity conducted by the defendant.
The decision was reversed by decision of the Court of Appeals in Katowice of 15th October 2013, file ref. no. I ACz 873/13. The theses questioned by the Court of Appeals in Katowice have been marked in italics.
- The term “claim” used in the Act (Polish Act on pursuing claims in group proceedings) is used in the meaning of the procedural request (demand). “Claim asserted in a court proceedings” in other words refers to the subject of the proceedings: for establishment, adjudication, shaping the legal relationship or right. Its specification is connected with the division of actions into, respectively: action for the establishment of the existence or the non-existence of the legal relationship or law, action for adjudication of the consideration, on the shaping of a legal relationship or right. The claimant (in the statement of claims) and the group members (in declarations on joining the group) filed pecuniary claims (compensatory claims for the payment of a specified amount reflecting the value of the damage incurred) towards the defendants. In the case of such claims, as indicated above, demanding solely the establishment of the defendant’s liability, which the claimant and the group members are claiming for, is admissible. Hence the premise of pursuing claims of one type is fulfilled.
- In the event of tort claims, claims resulting from one event (possibly a complex event) or from many events of the same type, should first and foremost be treated as those based on the same or similar (equal) factual basis.
- The deposit is to serve securing the enforcement of the judgement in the scope of the costs of proceedings which may be awarded to the defendant. The costs of proceedings are costs necessary for the purposeful pursuit of one’s rights and a purposeful defense, awarded to the party winning the case from the opponent (Article 98 of the CCP – Polish Civil Procedural Code). These are therefore not the costs awarded to the defendant as the court costs (i.e. fees and expenses).
- The essence of the deposit is to secure the claim for the reimbursement of the costs. Thus, similarly as this takes place in injunction proceedings, the defendant should at least make plausible that the lack of the deposit will hamper or seriously impede the enforcement of the judgement in the scope of the costs of proceedings.
- The amount of the deposit cannot be impacted by the claimant’s motions on allowing evidence from expert opinions or their presumable remuneration, as they are without influence on the costs of proceedings which may be awarded to the defendant from the claimant. The same regards the remuneration established by the claimant with his legal counsels.
The Regional Court in Warsaw, 3rd Civil Division in the following ruling bench:
The Chairman: Agnieszka Rafałko, Regional Court Judge
The Judges: Joanna Zielińska, Regional Court Judge; Andrzej Lipiński, District Court Judge (delegated)
having examined on 28th February 2013 in W. the case filed by the Municipal Consumer Ombudsman of the Municipal Office of the Capital City, the representative of the group (…) against the Housing Association (…) with its registered office in W. for payment
decides to:
hear the case in group proceedings.
- A claim for consumer protection is every claim that a consumer is entitled to against an entrepreneur, resulting from the legal transaction made between the consumer and the entrepreneur and is not limited only to claims based on specific acts within the scope of consumer law. There is no basis to accept that the aim of the legislator was to differentiate the status of consumers into those who can seek the protection of their claims in group proceedings and those persons who, despite the status of consumer, have to pursue their claims within the regular (ordinary) proceedings.
- It is commonly accepted, both in the case law as well as in the doctrine, that the status of the given person as a consumer should be assessed at the moment of performance of the legal action. The later changes on the allocation of the purchased good or service should not lead to changes of the once accepted assessment.
- Even in assuming the allegation of the defendant that Article 5 of the Act on Pursuing Claims in Group Proceedings) regards to the whole of the remuneration, and not only to the part connected with the result of the proceedings, then there is still no basis to state that the violation of this provision results in the invalidity of the entire agreement with the attorney. The legislator did not reserve such a sanction.
- As opposed to Article 1119 of the Code of Civil Procedure, in Article 8 of the Act, the legislator indicated that the court may obligate the claimant to submit a deposit. Hence not in every case of filing a motion by the defendant a deposit should be submitted. Therefore, it was necessary to consider whether in the present case exists the risk that in the event of the defendant winning the case, he could have problems with enforcing the awarded costs of the proceedings.
