Decision of the Regional Court in Warsaw 3rd Civil Division of 5th December 2017

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

Presiding Judge:            Ewa Jończyk, Regional Court Judge (rapporteur)

Judges:                            Agnieszka Matlak, Regional Court Judge

Mariusz Solka, Regional Court Judge

having examined on 5th December 2017 in Warsaw at the hearing in camera the case filed by the Municipal Consumer Ombudsman in O. against Bank (…) S.A. with its registered office in W. for payment,

/on the subject of the amendment of the decision; granting the claimant’s motion of 17th November 2017; pages of records no. 8.256-8.257/

hereby decides to:

amend the decision of the Regional Court in Warsaw issued in the subject case on 10th October 2017 regarding the announcement on the commencement of group proceedings, what was set out in point II of the ruling by publishing the announcement with the wording provided for in point I of the decision in the (…) section of the “(…)” daily. The costs of the publication will be temporarily covered from the budget of the State Treasury – the Regional Court in Warsaw.

Decision of the Regional Court in Warsaw 3rd Civil Division of 27th November 2017 r.

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  1. According to the Act on Pursuing Claims in Group Proceedings, a class action is admissible only when the group is homogenuous. The group which consists of members who acquired their cars: in Germany, 20 directly in Poland, 6 as the lessee in Poland, 15 as the secondary buyer in Poland, 3 members as the result of donation in Poland and 3 as the buyer after the end of leasing agreement may not be deemed homogenuous. For these reasons the statement of claims should have been rejected.
  2. The relations between the group members and the representative of the group should be considered as a type of agency.
  3. In case of statements of claims pursued in group proceedings, the group representative possesses the formal legal capacity, whereas group members hold the substantive legal grounds for pursuing the claim. It should be emphasised that there are differences between class action proceedings and standard civil proceedings in pointing to the fallibility of the traditional concept of procedural substitution.
  4. It is necessary to make a distinction between the formal legal capacity and material legal grounds for pursuing a claim in group proceedings. Although the court decides on the substantive legitimacy of the claims pursued by each group or subgroup member and the judgment issued on these grounds is an enforcement order respectively, it should be emphasised that there is only one claimant in the proceedings – the group members’ representative. Although the group members can be examined as a party in the proceedings, in fact they are not a party thereto.
  5. Therefore, if the group members are not a party to the proceedings, the statement of claims may not be rejected in relation to a part of them, simply because it is impossible to reject a claim in relation to an entity who is not a party to the proceedings.
  6. It is impossible to reject a statement of claims partially, because only one claim is pursued in group proceedings. If separate claims of every group member were the object of the proceedings, the court would to award specific amounts to the group members’ benefit, and not the whole to the representative of the group. This is not the case. In procedural terms, in group proceedings there is only one claim, which is awarded to the benefit of the claimant – the group representative. Hence, there are no legal grounds for dividing and partially rejecting the claim.
  7. The group members’ situation should be identical already at first glance and this may not require an examination as to the evidence already at the initial stage of the litigation only to check whether the statement of claims may be partially rejected when the prerequisites of the admissibility of group proceedings are examined in general.
  8. It is impossible to reject a statement of claim concerning the group representative’s part of the claim and prosecute the case further without them. Other members of the group are not parties to the proceedings in the case, therefore a partial rejection of the statement of claims in the part regarding the group representative’s claim will result in the lack of a claimant in the proceedings.

Decision of the Regional Court in Warsaw 3rd Civil Division with the following ruling bench:

Presiding Judge:            Joanna Bitner, Regional Court Judge (rapporteur)

Judges:                            Ewa Jończyk, Regional Court Judge

Grzegorz Chmiel, Regional Court Judge

having examined on 13rd November 2017 at the hearing in Warsaw the case filed by D.C. as the group representative against V. (…) with its registered office in W. (N.) for payment,

hereby decides:

  1. to reject the statement of claims;
  2. to charge the claimant with the costs of the proceedings, leaving the calculation thereof to the court clerk upon the decision becoming final and binding, whereby remuneration of the defendant’s attorney should amount to an equivalent of a 6-fold minimal rate.

Judgement of the Regional Court in Kraków 1st Civil Division of 19th October 2017

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  1. The doctrine and jurisprudence emphasise that the danger for citizens’ life, health and property, brought by the flood, causes the necessity to secure the social order in an organised manner. Public administration bodies (government and self-government) must be involved in this task, as they are responsible for providing flood protection. This goal may be achieved only by taking actions in the imperative form through the use of prohibitions, orders and appropriate restrictions, and the forms of such imperative actions can be used solely by public administration authorities. In the light of the above, there is no doubt that all activities in the field of flood protection, i.e. those aimed at minimising the risk related to the flood by creating an appropriate flood protection system, as well as those involving a quick reaction in the event of a real flood risk should be classified as belonging to the imperium
  2. In the Polish legal system, tasks in the field of the protection of citizens and property against flood are divided between a number of entities and bodies of government and self-government administration, and these entities should cooperate with each other and coordinate activities at various levels of the system. Hence, there is a necessity to establish the liability of many entities for damage suffered by group members, since one entity is responsible for the condition of the embankment, another for the embankment area, another for the condition of the river bed, and yet another for the coordination and conducting of anti-flood actions, and only all these tasks undertaken comprehensively can provide adequate flood protection. Contrary to the arguments of the defendant State Treasury, the civil structure of the complex tort is adequate to such a situation.
  3. The doctrine states that joint and several liability may arise only for one damage. The indivisibility of the damage takes place when, in the area of legally protected goods, it is impossible to mark (separate) damage caused by the actions of the individual entities, who are liable for the damage. The arisen joint and several liability related to the commission of a tort creates the same liability for all joint and several debtors. Its scope is the same for each of them, regardless of the degree of fault, the contribution to the damage or other circumstances.
  4. It is doubtful that in case for establishment of the liability for damages, it would be possible to raise the defence of limitation, since this institution concerns only the right to claim the benefit.

 

The Regional Court in Kraków 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 19th October 2017 in Kraków at the hearing the group action filed by Z. R. acting as a representative of a group consisting of [data of group members] against the State Treasury – Voivode Ś., Director of the Regional Board for Water Management in K.; the Ś. Voivodeship; S Poviat.; S. Municipality , for establishment,

decides to:

  1. establish the joint and several liability of the defendants: the State Treasury – Director of the Regional Board for Water Management in K. and the Ś. Voivodeship for damages caused to the members of the group consisting in [data of 27 group members], resulting from the complex tort committed by the defendants: the State Treasury – Director of the Regional Board for Water Management in K. and the Ś. Voivodeship consisting in the unlawful exercising of public authority in the field of flood protection (improper fulfilment of obligations) by the defendants, in the area of the S. Poviat of in the Ś. Voivodeship, which led to water overflow through the crown of the flood embankment located along the W. River in the district of the K. Municipality of S., located on plot of land no. 1407, precinct 5 right-bank S., and its interruption as a result of blurring on 19 May 2010, and to further consequences related to this event,
  2. dismiss the action in the remaining part,
  3. determine the final court fee for the action at the amount of PLN 100,000 (one hundred thousand zlotys),
  4. order the State Treasury – Director of the Regional Board for Water Management in K. and the Ś. Voivodeship to jointly and severally pay the amount of PLN 124,020 (one hundred twenty four thousand and twenty zlotys) to the benefit of Z. R. (a group representative) as reimbursement of the costs of the proceedings,
  5. order the Ś. Voivodeship to pay the amount of PLN 96,600 (ninety six thousand six hundred zlotys) to the benefit of the State Treasury – the Regional Court in Kraków as a missing part of the court fee for the action,
  6. order the State Treasury – Director of the Regional Board for Water Management in K. and the Ś. Voivodeship to jointly and severally pay the amount of PLN 42,711.70 (forty two thousand seven hundred eleven zlotys and 70/100) to the benefit of the State Treasury – the Regional Court in Kraków as a missing part of the amount for the expenses incurred in the case,
  7. order the Z. R. (a group representative) to pay the amount of PLN 7,200 (seven thousand two hundred zlotys) to the benefit of the S. Poviat and S. Municipality, to each of them, as reimbursement of the costs of legal representation,
  8. order the State Treasury – Director of the Regional Board for Water Management in K. and the Ś. Voivodeship to jointly and severally pay the amount of PLN 7,200 (seven thousand two hundred zlotys) to the benefit of Z. R. (a group representative) as reimbursement of the costs of legal representation.

Decision of the Regional Court in Warsaw 3rd Civil Division of 10th October 2017

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The decision was changed in point 2. by the decision of the Regional Court in Warsaw 3rd Civil Division of 5th December 2017, III C 1089/15.

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

Ewa Jończyk, Regional Court Judge

Agnieszka Matlak, Regional Court Judge

Mariusz Solka, Regional Court Judge

having examined on 10th October 2017 in Warsaw at the hearing in camera the case filed by the Municipal Consumer Ombudsman in O. against Bank (…) S.A. with its registered office in W. for payment,

/on the subject of the announcement on commencement of group proceedings/

decides to:

  1. publish an announcement in the (…) section of the ‘(…)’ daily newspaper on the commencement of the group proceedings with the following content:

’Under the Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws of 2010, No. 7, item 44), a class action was initiated by the Municipal Consumer Ombudsman in O. (file ref. no. III C 1089/15) before the Regional Court in Warsaw 3rd Civil Division against Bank (…) S.A. with its registered office in W. (Bank) for the return of amounts collected by the Bank from the Bank’s clients as a  low own contribution insurance policy (hereinafter referred to as: „UNWW”) for mortgage loan/ consolidation loan ((…)).

(…)

Interested parties may join the class action within the term of 3 months, which cannot be exceeded, from the date of notification of that announcement. The term cannot be reinstated or extended.

(…)

In order to join the group, a written declaration on joining the group should be filed. The declaration shall be submitted to the group representative – the Municipal Consumer Ombudsman in O., through the one of the following counsels who represent him: Z. D., attorney-at-law M. S., legal counsel , J. M., attorney-at-law, and K. W., attorney-at-law (common address for service: Kancelaria (…), T. i Wspólnicy Sp. k., ul. (…), (…)-(…) W., e-mail: (…)).

(…)”.

  1. obligate the claimant, through the counsel, to publish an announcement in the (…) section of the ‘(…)’ daily newspaper and to submit evidence that the order is complied with, within 3 (three) weeks, on the pain of publishing the announcement by the Court at the claimant’s cost.

Decision of the Regional Court in Wrocław 1st Civil Division of 5th October 2017

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  1. The standardization of the claims shall be assessed with respect to pursuing homogenous claims in this sense that the Act sets out the requirement to pursue by all claimant members an action for adjudication, action for declaration or shaping of a legal relation or right.
  2. During the process of interpretation of the term ’homogeneity of claims‘ on the grounds of the Act on Pursuing Claims in Group Proceedings, as well as the terms ’factual basis‘ and ’standardization of claims’, which are not legally defined the main goals of group proceedings shall be taken into consideration.
  3. The premise of homogeneity of claims relates to claims which arise from one type of legal relations. The abovementioned meaning of homogeneity of the claims is not associated with the same legal basis. That is because, pursuant to the Article 1 (1) of the Act on Pursuing Claims in Group Proceedings, the commonality of legal norms which are the basis of the claims is not the premise of admissibility of group proceedings.
  4. The requirement of the same or similar factual basis of the statement of claims means that the factual basis of the claims does not have to consist in the same circumstances but the significant similarity of them is sufficient.
  5. In case of declarations on joining the group, the date of submitting them to the group representative is important, not the date their being signed by the entity who declares the intent to pursue their claim in group proceedings.

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

Radosław Nawrocki, Regional Court Judge

Marcin Śmigiel, Regional Court Judge

Iwona Wysocka, District Court Judge

having examined on 5th October 2017 in Wrocław at the hearing in camera the case filed by E. S. acting as a group representative against (…) Bank (…) S.A. in W. for payment, hereby decides to:

establish, on the grounds of the Article 17.1 of the Act of 17 December 2009 on Pursuing Claims in Group Proceedings, that the group consists of the following persons:

1) within the subgroup A: [6 members];

2) within the subgroup B: [4 members];

3) within the subgroup C: [4 members];

4) within the subgroup D: [8 members];

5) within the subgroup E: [2 members];

6) within the subgroup F: [4 members];

7) within the subgroup G: [3 members];

8) within the subgroup H: [2 members];

9) within the subgroup I: [3 members];

10) within the subgroup J: [3 members];

11) within the subgroup K: [2 members];

12) within the subgroup L: [3 members];

13) within the subgroup M: [5 members];

14) within the subgroup N: [3 members];

15) within the subgroup O: [2 members].

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Decision of the Regional Court in Gdańsk 25th Civil Division of 4th October 2017

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The Regional Court in Gdańsk 25th Civil Division, in the following ruling bench:

Presiding Judge:            Urszula Malak, Regional Court Judge,

Judges:                            Dorota Kołodziej, Regional Court Judge

Krzysztof Solecki, Regional Court Judge

having examined on 4th October 2017 in Gdańsk at the hearing in camera in group proceedings the case filed by group representative (…) against (…) and (…)

decides to:

  1. establish that subgroup I i.e. the subgroup demanding the ascertainment of the invalidity of the Usenet service provision agreements concluded by the group members with the defendant and the award of a payment of PLN 94.80 to each group member by defendants jointly and severally as the return of undue performance, alternatively – in the event the statement of claims is dismissed in that scope – the ascertainment that the group members are not obligated to pay PLN 94.80 to the defendants as the subscription fee for using the services offered by the website www.pobieraczek.pl, consists of: [data of 48 group members];
  2. establish that subgroup III i.e. the subgroup demanding the ascertainment of the invalidity of the Usenet service provision agreements concluded by the group members with the defendants, alternatively – in the event the statement of claims is dismissed in that scope – the ascertainment that the group members are not obligated to pay PLN 94.80 to the defendants as the subscription fee for using the services offered by the website www.pobieraczek.pl, consists of: [data of 59 group members];
  3. establish that subgroup V i.e. the subgroup demanding the ascertainment that the Usenet service provision agreement concluded by the group members with defendants are invalid, alternatively – in the event of dismissing the statement of claims in that scope – ascertainment that the group members are not obligated to pay PLN 94.80 as the subscription fee to the defendants for using the services offered by the website www.pobieraczek.pl and that they are not obligated to pay the contractual penalty of USD 100 to the defendants for breaching § 6 point 3 of the Usenet Service Provision Terms and Conditions of 16th April 2010, consists of: [data of 482 group members];
  4. dismiss the motion for decision on establishing the composition of the group in the remaining scope.

Decision of the Regional Court in Warsaw 3rd Civil Division of 2nd October 2017

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  1. A sole entrepreneur or a partner in a civil law partnership (therefore as a natural person) can purchase an object either as an entrepreneur or as a consumer. In such a case the purpose for which the agreement is concluded is the decisive factor.
  2. The potential disposal of the tickets bought by consumers to other people has no influence on the decision whether the claims are based on an equal legal basis.
  3. It is therefore difficult to recognize that the claims of the consumers, who purchased the tickets (admittedly in a special offer including gratuitous services, which are not the object of their claims)cannot be deemed as the claims based on the equal or the same factual basis.

 

The Regional Court in Warsaw having examined the case of A.R. – as a group representative against (…) Związek (…) in W. for payment, during an in camera hearing on 2nd October 2017,

hereby decides:

  1. to proceed the case in the group proceedings and that the group represented by A.R. consists of: [114 group members]

Judgment of the Regional Court in Szczecin, 1st Civil Division of 22nd September 2017

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

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

Judges:                        Katarzyna Krasny, Regional Court Judge; Renata Tarnowska, Regional Court Judge

having examined on 8th September 2017 in Szczecin at a hearing of the case filed by K. P. – the representative of the group composed of the following participants: (…) against the State Treasury – (…) and (…) for payment:

  1. dismisses the action,
  2. awards from the group representative (…) to the State Treasury – (…) the amount of 14 400,00 zł (fourteen thousand four hundred) złotys as a return of the legal representation costs,
  3. awards – (…) the amount of PLN 257,28 (two hundred fifty seven zlotys twenty eight groszy) from the representative of the group K. P. for the State Treasury for expenditures.

Decision of the Regional Court in Warsaw 16th Commercial Division of 3rd July 2017

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

Presiding Judge:     Maria Zgiet–Zawadzka, Regional Court Judge

Judges:                     Jan Wawrowski, Regional Court Judge, Katarzyna Bartosiewicz, Regional Court Judge

having examined on 3rd July 2017 in Warsaw at the hearing in camera the case filed by (…) and (…) C.A. Ltd in W. against (…) Society (…) joint stock company in W. for compensation

hereby decides to:

discontinue the proceedings.

Decision of the Regional Court in Warsaw 1st Civil Division of 26th June 2017

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  1. A declaration on joining the group may be submitted before the announcement on the opening of group proceedings is published, nevertheless in order to be legally valid it needs to be served on the representative of the group only. Serving such a declaration to the court is legally invalid.
  2. The Polish Act on Pursing Claims in Group Proceedings of 17th December 2009 does not determine who a declaration on leaving the group is to be served to. Taking into account the per analogiam reasoning and the fact that a group member is not a subject in group proceedings, it can be concluded that such a declaration should be served onto the representative of the group. Such a conclusion, nevertheless, seems to restrict the liberty of deciding on being a member of the group. The Act does not impose any duties on the representative of the group in respect of leaving the group by an individual member, in particular it does not obligate him to accept or control, or transfer such declarations to court. Conditioning the legal validity of such a declaration on whether the representative transfers the declaration to the court would be absolutely pointless and artificial. Thus a declaration on leaving the group shall be served upon court so that the court takes it into account when rendering the decision on the group membership.
  3. A declaration on joining the group, next to the elements listed in Article 12 of the Polish Act on Pursuing Claims in Group Proceedings, should include an indication of the person and their signature.

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

Presiding Judge:    Rafał Wagner, Regional Court Judge

Judges:                    Bożena Chłopecka, Regional Court Judge, Ewa Ligoń-Krawczyk, Regional Court Judge

having examined on 26th June 2017 in Warsaw at the hearing in camera the case filed by P.K. against the State Treasury – Minister of Family, Labour and Social Policy and Social Security in W., (…) joint-stock company in W.  (…) joint-stock company in W. , (…) joint-stock company in W., (…) joint-stock company in W., (…) joint-stock company in W.  for establishment

hereby decides to:

  1. establish that the group includes: [54 persons];
  2. establish that the group does not include: [11 persons].