- 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.
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.
- The subject metter of the statement of claims are not the claims of the individual group members for the payment, but only the prejudging of the principle of the defendant’s liability. The judgement, which is to be issued in the case, will fulfill the role of a precedent enabling the pursuit of claims for payment. In this situation, the estimation of the defendant’s potential proceeding costs must include the value of the subject of the proceedings, calculated uniformly for all of the group members, and not the value that is calculated separately for each of them. This is where the limit, established by the Court, of the possible costs of legal representation of the defendant (PLN 43,200) stems from.
- In assessing the legitimacy of the defendant’s demand to secure the costs of the proceedings through the payment of a deposit by the claimant, one cannot lose sight of the stage, on which this assessment is made along with the aim of the above regulation. Without a doubt, the implementation of the regulation in the subject of the deposit for securing the costs of the proceedings was to constitute an effective barrier against abusing the institution of group proceedings. The defendant, in submitting such a motion, should, however, make plausible the fact that the initiation of the statement of claims against him is obviously groundless or that its consideration is highly improbable, therefore it carries the traits of “procedural barratry” and secondly, that the lack of establishing a deposit for securing the future claim on awarding the costs of the proceedings will impede or severely hamper their enforcement on the claimant.
- The modification of the statement of claims brought by the claimant consists in bringing a new claim without changing the factual basis of the claim raised. It is beyond any doubt that the new claim (for establishment) was raised in place of the hitherto one (for payment). In this state of affairs, irrelevant was the Regional Court’s finding that the demand for payment still remains to be examined in the case, if the claimant expressly stated that that the modification of the statement of claims performed by him constituted neither a tacit nor express withdrawal of the suit or renunciation of the pursued claim.
- There were no grounds for the issuance of a decision regarding the initially raised claim for payment. As already indicated, there was no grounds whatsoever to find that the primary demand was still subject of examination and, in consequence, there was no need to reject it. There were no grounds to discontinue the proceedings in this scope. It is particularly fitting to point to the specificity of the claim for establishment of the defendant’s liability, provided for in Article 2 section 3 of the Act on pursuing of claims in group proceedings, as aimed at establishment of the principle of the defendants’ liability. A situation where both the claim for payment and for establishment are based on the same factual basis, at the mutual relation of these claims arising from the specific provisions contained in the quoted Act, in the event of the admissible modification of the statement of claims, renders discontinuation of the proceedings superfluous.
- Modification of the statement of claims consisting in bringing forth a new claim in place of the primary one contains a tacit withdrawal of the primary claim. Lodging by the claimant a demand for establishment of liability does not constitute a limitation of the primary demand for payment, but its modification. Both demands are of a spontaneous nature, they are different in terms of content, and they intend to achieve different goals.
- In assumption, the demand for establishment of liability in cases where future group members will be pursuing payment from the defendant should be brought forth when the pecuniary claims of group members are unfit to be standardised in terms of value due to diversification of circumstances pertaining to individual members of the group. Difficulties with standardisation of pecuniary claims of individual group members in the frames of the original action for payment persuaded the claimant to modify the statement of claims for establishment. The best moment for the claimant to perform such a modification is the stage of assessing admissibility of examination of the case in group proceedings. There are no legal provisions limiting admissibility of performance of modification depending on the stage of the proceedings in the first instance, also in group proceedings.
- After modification of the statement of claims, group members pursue their claims in the same in generic terms form of legal protection – for establishment – therefore the claims are homogenous in the meaning of Article 1 section 1 of the Act (Polish Act on pursuing claims in group proceedings). It is only worth highlighting that in Article 1 section 1 the Act uses the claim in the procedural sense.
- The event being the source of the claim in the case of each member of the group is the same – it is the above-described tort [perpetrated by] the defendants, what is more – a complex tort. Yet, the requirement of the same or equal factual basis does not mean the requirement for all elements of the factual grounds in the case of each of the claims to be identical or equal. Existence of one element shared in the scope of factual circumstances constituting the basis of the group members’ claims, i.e. a damage-causing event, is sufficient.
The decision was partially reversed by decision of the Court of Appeals in Krakow of 17th September 2012, file ref. no. I ACz 1324/12. Thesis questioned by the Court was marked in italics.
- The level of complexity of the case is not a gage of the amount of the fee on the statement of claims indicated in the Act (Polish Act on court costs in civil cases). The main criteria which the legislator was directed by in establishing the amount of the fee on the statement of claims in the case of property claims is their value.
- The statement of claims based on Article 2 section 3 of the Act on pursuing claims in group proceedings, i.e. on the establishment of the defendant’s liability as it follows from the above provision is a type of pecuniary claim, however at the present time, it is not possible to establish the value of the object of the dispute, and thus the amount of the fee relative to the statement of claim, as it is impossible to calculate the general amount of the claims pursued by the group members, before establishing its composition. This will become admissible after the issuance, by the Court, of a decision on composition of the group based on Article 17 section 1 of the Act on pursuing claims in group proceedings. At the present time, in accordance with Article 15 section 2 of the Act on court fees in civil cases, a temporary fee should be established, based on the amount of the damages (amount of the claims) incurred by the already represented group members.
The decision was partially amended with the decision of the Court of Appeals in Warsaw of 6th June 2012, file ref. no. I ACz 868/12. The thesis questioned directly by the Court of Appeals in Warsaw is marked in italics.
- Proceedings on the establishment assume the omission of the examination of the circumstances closely regarding the individual group members, which are to be examined in the series of later proceedings conducted in a regular manner. For this reason the unification (standardization) of the amount of the claims is not required.
- The provisions of the Act (Polish Act on pursuing claims in group proceedings) do not stipulate the partial rejection of the statement of claims in group proceedings. The Court is not competent firstly to “choose” only those claims, from amongst the ones submitted, which are suitable for the said proceedings, and secondly – at the stage of examining the admissibility of the statement of claims – to eliminate the individual entities indicated as group members.
- The aim of obtaining the verdict establishing the defendant’s liability is to obtain a precedent for possible individual actions of the group members for payment, or a basis for the conclusion of a settlement between the group members and the defendant. The claim included in the statement of claims understood in such a way is of a pecuniary nature, despite the fact that it does not constitute a claim for payment. It is not necessary to indicate the amount of the claim of each of the group members in the statement of claims, and Article 2 section 3 of the Act (Polish Act on pursuing claims in group proceedings) constitutes an exception to the rule of indicating and standardising the amount of the claims of the group members resulting from Article 2 section 1 and Article 6 section 1 point 3 of the Act.
- It may be assumed that in compliance with the rule of the freedom of contracts (Article 3531 of the Civil Code), group members may entrust the function of the group representative to the consumer ombudsman from any city or district in the country. The consumer ombudsman is authorised, but not obligated to be the group representative and if he expresses consent to accept this function, then the issue of the territorial scope of his operation is without meaning for the further proceedings.
- The procedural relations between the group’ representative and the group members were regulated on principle of subrogation, which means that the group representative conducting the proceedings in his own name, but on behalf of all of the group members. The group members are not parties to the group proceedings.
- The premise of the homogeneity of the claims should be understood in such a manner that the requests (demands) resulting from them are common for all of the group members. The statement of claims must therefore include the request (demand) to grant the same form of legal protection for all of the group members.
- The very factual basis of the statement of claims, however, constitutes the basic (initial) aggregate of facts substantiating the claim. The same factual basis of the statement of claims takes place when obtaining legal protection is connected with an identical situation or event. Whereas it is possible to speak of equal factual basis in a situation in which the claims are derived from merely similar situations and events.
- The notion of cases regarding consumer protection also includes the establishment of contractual liability, connected with the issue of the non-performance or the improper performance of the obligation in the meaning of Article 471 of the Civil Code. In this case, we are dealing with the improper performance of obligations resulting from legal actions in the form of consumer contracts.
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.
