Judgement of the Regional Court in Kraków 1st Civil Division of 19th October 2017
- 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
- 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.
- 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.
- 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:
- 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,
- dismiss the action in the remaining part,
- determine the final court fee for the action at the amount of PLN 100,000 (one hundred thousand zlotys),
- 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,
- 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,
- 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,
- 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,
- 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.
Judgment of the Regional Court in Katowice 2nd Civil Division of 12th April 2017
- Under Article 4 (1) of the Polish Act on Pursuing Claims in Group Proceedings, the representative of the group is the person filing the action. Thus, the representative of the group, who filed the action on behalf of the group members, is a claimant in the procedural meaning, whereas the group members are claimants in the substantive meaning.
- Under Article 17 (1) of the Polish Act on Pursuing Claims in Group Proceedings, the Court issues a decision on composition of the group. The doctrine indicates that decision on the composition of the group is of a constitutive nature. Thus the membership in the group is not created by declarations on joining the group submitted by individuals, but by the issuance of the Court’s decision on the composition of the group’ establishes its composition in a class action.
- There is no need to examine the claim of a group member who passed away before the decision establishing the group composition was rendered.
- It seems admissible to broaden the demand of the statement of claims by claims of further persons, because it does not obligate the Court to establish the group membership anew. As a result of such broadening, the already validly established composition of the group is not changed.
- The pursuit of a cash claim on the basis of Article 2 (3) shall be broken down into two stages: the first one as a class action for establishment and the second as individual actions for payment.
- It should be emphasized that when only demanding the establishing of the defendant’s liability under Article 2 (3) of the Act on Pursuing Claims in Group Proceedings, the claimant also needs to formulate a cash claim, the pursuing of which in later individual proceedings is aimed at determining defendant’s liability and this liability in group proceedings must be established in reference to a cash claim the performance of which group members seek from the defendant.
Judgment of the Regional Court in Katowice 2nd Civil Division in the following ruling bench:
Presiding Judge: Agata Stankiewicz-Rataj, Regional Court Judge
Judges: Anna Bogaczyk-Żyłka, Regional Court Judge, Lech Skórski, Regional Court Judge
having examined on 12th April 2017 in Katowice at a hearing the case filed by M. G. – the group representative, also acting for members of the group: (…) against Housing Cooperative (…) in B. for the establishment of the invalidity of the agreements and for payment
hereby decides to:
- dismiss the action
- abstain from charging the claimant with the obligation to reimburse the defendant for the costs of proceedings.
Decision of the Regional Court in Łódź 1st Civil Division of 19th December 2016
- The case may be examined in group proceedings if the following premises are fulfilled: at least 10 people pursuing one homogenous claim based on the same or similar factual basis and alternative inclusion of the object of the proceedings within the following categories: claims for the protection of consumers or claims for damage caused by hazardous products or claims for damage caused by a tort, save for claims for the protection of personal rights (Article 1 of Act on Pursuing Claims in Group Proceedings).
- ’The same‘ factual basis of pursued claims exists when factual circumstances are identical and a legal protection is sought by participants of one event, thus a bond based on the unity of the damage-causing event occurs. Similar‘ (equal) factual basis means the similarity of particular established facts.
- The essence of group proceedings is the commonality of demand which must be typical (common) for all claims and is based on the identical factual situation of the group members. non-significant dissimilarities may exist among individual grounds of the claims , but the significant factual circumstances should substantiate a demand which is common for all claims.
- The literal wording of the provision indicates that for ascertaining the admissibility of the group proceedings it is sufficient if at least 10 people pursue homogenous claims based on the same factual basis. Whereas, ascertaining whether all persons who submitted declarations on joining the group may be its members – is the next stage of group proceedings, which pursuant to Article 17 of the Act on Pursuing Claims in Group Proceedings ends with a decision on the group composition.
- The term ’claim’ within the meaning of Article 1.1 of the Act on Pursuing Claims in Group Proceedings (unlike Article 2 of the Act on Pursuing Claims in Group Proceedings) means the demand of the statement of claims. In consequence, the group proceedings are not limited only to action for performance.
- The important dissimilarity between filing an action for establishment of liability under Article 189 CCP and an action under Article 2.3 of the Act on Pursuing Claims in Group Proceedings ’for establishment of the defendant’s liability‘ is that the claimant is obligated to prove the legal interest if he pursues the claim under Article 189 CCP.
- The defendant who files a motion for obligating the claimant to make a deposit to secure the costs of the proceedings, should make plausible, firstly, that the pursued claims against him is obviously unfounded or that the acceptance of the statement of claims is unlikely, therefore has the characteristics of litigiousness. Secondly, the defendant should make plausible that the lack of the deposit to secure the future claim for reimbursement of costs of the proceedings will make an execution of the costs from the opposite party impossible or significantly more difficult.
The Regional Court in Łódź 1st Civil Division in the following ruling bench:
Katarzyna Kamińska-Krawczyk, Regional Court Judge
Marzena Kluba, Regional Court Judge
Anna Jóźwiak, Regional Court Judge
having examined on 19th December 2016 in Łódź at the hearing the group action filed by the Municipal Consumer Ombudsman in W. against (…) with its registered office in W. for establishment of the defendant’s liability,
concerning: the admissibility of the group proceedings and defendant’s application to obligate the claimant to pay a deposit to secure the costs of the proceedings,
decides to:
- examine the case in group proceedings;
- dismiss the defendant’s motion to obligate the claimant to pay the deposit to secure the costs of the proceedings.
Decision of the Court of Appeals in Warsaw 1st Civil Division of 17th February 2016
- In a class action for establishment of a defendant’s liability, the claimant is not obliged to prove the occurrence of damage or value of damage incurred by members of the group if these are individual and not common circumstances, yet he has to specify what the damage is for all group members, hence – what loss in assets they consider to be damage arising from a tort constituting the grounds of the claim. Whereas it is the duty of the court to establish and assess whether the loss in assets thus specified may be considered as damage caused by a tort indicated in the statement of claims and whether it is common to all members of the group.
- The provisions of European law in the European legal order take advantage of the presumption of validity on the same principle as the provisions of national law in the national legal order. In the event of a conflict between provisions of the national law and the provisions of the European law, the administrative authority must be guided by the principle of primacy of the European law.
- There is no legal basis from which could arise the presumption of the compliance of rules of the national law with the European law. The administrative authority is obligated to assess the compliance of the national provisions with the European law and if they are found to be contradictory, refuse to apply the national law.