- The terms without a legal definition in Act on Pursuing Claims in Group Proceedings such as homogeneity of the claims, the common factual basis of claims, the standardisation (equalisation) of claims should be construed in accordance with the goals of the class action proceedings. Undoubtedly, the cumulation of many persons in single proceedings constitutes the essence of group proceedings. Such a cumulation is justified due to the procedural economy and purposelessness of conducting many similar proceedings.
- The difference in standard contract terms and templates binding the members of the group with the defendant, the mode of conclusion of a contract with either the insurer or a dealer, performing the information obligation in another way are not prerequisites which would substantiate deeming the claims impossible to be recognised as being based on the common factual basis. Moreover, differences in the amount of premiums and the frequency of payments do not amend such assessment. The claims of members of the group are based on a common factual basis. i.e. a clause in the agreement which gave the defendant the basis to collect redemption fees which in the opinion of the group members were glaringly extortionate.
The Court of Appeals in Warsaw, 6th Civil Division in the following ruling bench:
Presiding Judge: Jacek Sadomski, Court of Appeals Judge
Judges: Jolanta Pyźlak (rapporteur), Court of Appeals Judge; Marcin Strobel, Court of Appeals Judge
having examined on 7th October 2016 in Warsaw at the hearing in camera in the group proceedings the case filed by the Municipal Consumer Ombudsman in the City Hall of the City of S. as the group representative (…) against Insurance Company in W. for the payment or, potentially, the establishment of the existence or non- existence of legal responsibility
as the result of Defendant’s complaint against the decision of the Regional Court in Warsaw dated 26th April 2016, file ref. no. XXV C 915/14, during an in camera hearing,
decides to:
dismiss the complaint.
- The essence of group proceedings is the commonality manifested in the demand which must be generic (common) for all claims. Therefore, a demand raised by the group representative in a class action must be generic for the entire group he or she represents. The condition indicated means that a legal or factual situation of members of the group must be the same, while the claim pursued must be homogenous (homogeneity of the claims) since only then a joint demand may be raised.
- The requirement of a similar factual basis of claims does not mean that all the circumstances of the case must be identical for each member of the group because, even where the claim is based on an identical basis, there will always be individual circumstances, concerning specific members of the group. The condition of the identical factual basis is met when the facts substantiating the existence of a specific legal relationship which is the basis of the claims are identical in relation to all members of the group.
- The notion of ‘a claim’ used in Article 1 of the Act on Pursuing Claims in Group Proceedings appears in the meaning of a demand in proceedings. It is impossible to assume that it appears in the substantive law meaning, which should be understood exclusively as a possibility to demand a specific conduct from a given person. Consequently, this notion should not be given a meaning taken strictly from substantive law. Therefore, a claim in proceedings is constituted by a claimant’s claim detached from substantive law and regarding the existence of a certain right, presented to the court in order for it to be granted legal protection.
- In light of Article 1 (1) of the Act on Pursuing Claims in Group Proceedings, the pursued claims must be homogenous, i.e. of one kind and based on an equal factual basis. Claims based on an equal factual basis are claims based on an equal factual basis (a sensu stricte prerequisite) or claims having common factual circumstances (a sensu largo prerequisite). The existence of minor differences between individual bases of claims does not eliminate the possibility of pursuing these claims in these proceedings, nevertheless, it is necessary for the substantial factual circumstances to substantiate the demand common for all the claims.
- The assessment of a group member’s status as a consumer is not influenced by education, experience, or practiced profession, whereas at the later stage, while examining the content-related legitimacy of the action, deciding whether the content of the questioned contractual provision shaped in the course of the conducted negotiations and establishing how a given provision was understood by parties will be of substantial significance.
- In compliance with requirements included in the contents of Article 2 of the Act, claims may be standardised on the basis of common circumstances of the case, and therefore similar for the group members and simultaneously different to those which were decisive for the formation of other groups. The standardisation of claims which is a condition of admissibility of conducting a class action may come down to assuming a lump sum value of claims for all claimants (at least within a subgroup) not exceeding the lowest claim due to one of them.
- From the perspective of homogeneity of claims such circumstances as differences in the provisions of agreements or contract templates binding the group members and the defendant are not an important element of the factual basis, insofar as each of the agreements includes a contested clause in dispute. Any discrepancies in the wording of the clause are irrelevant. That is because the decisive factor is whether the same mechanism is applicable in each transaction.
- If all group members submitted declarations on joining the proceedings with the demand for adjudication, including also the demand for establishment of liability – they brought forth demands of the same kind.
The Court of Appeals in Warsaw, 1st Civil Division, in the following ruling bench:
Presiding Judge: Katarzyna Polańska – Farion, Court of Appeals Judge (rapporteur); Edyta Jefimko, Court of Appeals Judge
Judges: Edyta Jefimko (rapporteur), Maciej Dobrzyński, Court of Appeals Judge
Having examined considered on 24th August 2016 in Warsaw at the hearing in camera the case filed by the District Consumer Ombudsman in Poviat of (…) against (…) the insurance company joint stock company in W. for payment
Following the Defendant’s complaint against the decision of the Regional Court in Warsaw dated 20th April 2016, file ref. no. XXIV C 554/14,
decides:
to dismiss the complaint.
- Group members must be bound by a specific subjective and objective bond. The subjective bond pertains to individuals in the group who have suffered as a result of the perpetrator’s single act. In a class action, such individuals pursue claims from one entity (the violator). In turn, the objective commonality is related to the type of violation which has this effect that a joint pursuit of claims by the group is substantiated and possible. The bond existing between members of the group must be based on the same or similar factual basis.
- In the situation in which the factual and legal basis of the pursued claims and their homogeneous nature are the same for all claimants, standardisation of claims, where claimants decide to litigate in a class action, must be performed in relation to all of them, without a possibility of division into smaller subgroups.
- This is because it is assumed that individuals within a subgroup are individuals whose claims have been standardised in connection with occurring differences, e.g. the nature of damages sustained thereby in the same event is different (…). The requirement for standardisation of cash claims is dictated by a drive at streamlining group proceedings. Hence, the claim standardisation procedure may not be performed in a random manner, it must take the shared circumstances of the case into consideration.
- The Act on Pursuing Claims in Group Proceedings does not determine whether group members’ consent to dispositive actions must be expressed before undertaking such action. It seems however, that lege non distinguente, such consent may be expressed either before undertaking of the act or thereafter.
- In cases where the individual members expressed the will to base their claims on two potential substantive law bases, not excluding the possibility of taking advantage of any of them, the group’s representative may alter the order in which to pursue the claims. The altering of the order of the claims to be pursued does not require the consent mentioned in Article 19 of the Act on Pursuing Claims in Group Proceedings.
- A charge of application of a defective construction of modify the claim may in no way be qualified as disqualifying the examination of the case in group proceedings.
- On the grounds of the Act on Pursuing Claims in Group Proceedings, it does not matter whether the claims arise from the same or from different legal relationships.
- At the stage of a preliminary examination, the court examines factual circumstances that are of key significance and common to all members of the group, without a detailed analysis of circumstances characteristic only of single or certain members of the group, but having no influence on the future legal assessment of claims pursued by claimants.
- In Article 2 of the Act on Pursuing Claims in Group Proceedings, there are no premises related to proportionality of the pursued claims.
- For group proceedings to be admissible, it is sufficient that the fundamental circumstances of the factual basis were similar in relation to a sufficient number of people. Whereas is not absolutely necessary for all circumstances constituting the factual basis of demands of individual group members to be common.
- A fundamental circumstance determining the admissibility of group proceedings is the identicalness of the mechanism declared by the claimant. The dissimilarity of standard terms applied to individual group members, the dissimilarity of the policyholder, as well as the dissimilarity of conditions under which the individual contracts may have been concluded, in light of the statement of claims remains of no significance for establishing, whether a valid insurance contract may have been concluded at all, as well as whether a mechanism setting the level of liquidation or handling fees dependent on the term of the contract is admissible at all.
- In a situation in which the composition of a initiating group is shaped outside of the court proceedings, the issues pertaining to the internal organisation of this group are not regulated by the provisions of the Act on Pursuing Claims in Group Proceedings. Such entities, cooperating with each other, autonomously determine the content of the statement of claims, including the content of the raised claims, circumstances substantiating them, as well as motions for the taking of evidence, but also choose the group’s representative.
- Declarations of group members on joining the group and consenting for a specific person to act in the capacity of the group representative are not a basis, autonomous and independent of the statement of claims, for the establishment of the object and admissibility of the group proceedings by the court; they are aimed at identifying members of the group.
- It is admissible to refer in declarations on joining the group to the statement of claims in the scope of the indication of demands, circumstances substantiating the demand, circumstances substantiating participation in the group, as well as evidence.
- Any substantive and procedural law effects of initiating a group proceedings arise on the date on which the statement of claims along with attachments is filed, hence a date on the declaration subsequently attached to the statement of claims is of no significance.
- If declarations of members of the initiating group on joining the group is not attached to the statement of claims it should be considered as the lack of form of the statement of claims, rendering further examination of the case impossible and subject to removal under Article 130 par. 1 of the CCP CCP in conjunction with Article 24.1 of the Act on Pursuing Claims in Group Proceedings. Yet, such an omission does not constitute an immediate basis for the dismissal of the action.
- A demand for ceasing to infringe on the author’s economic rights of group members by banning the defendant from using a file exchange system in greater detail defined in the statement of claims, resulting in or leading to an infringement of author’s economic rights of group members fits within the objective scope of a group proceedings.
- There is no unambiguous bases to prejudge that preventative claims regulated in Article 439 of the CC may not at all be entertained in a group proceedings; this issue should be subject to the court’s assessment performed on the occasion of a content-related examination of the legitimacy of a class action.
- A class action is suitable for pursuing homogeneous claims, with their source in one type of a legal relationship, even if they gave rise to different substantive law claims.
- The requirement of the same or similar factual basis of the claim means that the factual basis of the claim does not have to be constituted by identical circumstances, but substantial similarity is considered to be sufficient.
- Non-indicating by the claimant when the author’s rights of group members were infringed upon and non-indicating the fact that the defendant was notified of the infringements by each of the group members does not in itself prejudge the lack of identity of the factual basis of group members’ claims.
- The need for the occurrence of a set of circumstances substantiating a specific legal relationship does not mean that the entirety of the case’s factual status is to be based exclusively on identical facts.
- In light of Article 12 of the Act on Pursuing Claims in Group Proceedings, the claimant was only obligated to indicate circumstances substantiating the demands, but not all the circumstances of the present case.
- In order to initiate group proceedings it is enough if basic circumstances of the case constituting the factual basis of the claim, are equal towards a sufficient number of parties. The analogy of all circumstances constituting the factual basis of claims of individual group members is not an absolute requirement..
- In order to assess the admissibility of the statement of claim it is not important that the requests are derived from five formally different standard templates. The fundamental circumstance determining admissibility of group proceedings is the identicalness of the mechanism introduced by all these templates.
- The differences in templates towards individual group members as well as the difference in circumstances of conclusion of each of the contracts, or differences in knowledge and life experience of each member of the group may not preclude an assumption that claims arte fit to be examined in group proceedings. That is simply because they have been based not on the same factual basis but on an equal factual basis in the meaning of Article 1 (1) of the Act on Pursuing Claims in Group Proceedings.
- The question of legal interest from Article 189 CCP is of significance at assessment of the validity of the statement of claims, it constitutes a premise for the claim to be allowed, therefore, it may not be anticipated for the needs of the decision on the very admissibility of group proceedings.
Court of Appeals in Warsaw 1st Civil Division, in the following ruling bench:
Presiding Judge: Marzena Konsek-Bitkowska, Court of Appeals Judge (rapporteur)
Judges: Zbigniew Cendrowski, Court of Appeals Judge; Dorota Markiewicz, Court of Appeals Judge
having examined on 10th March 2016 in Warsaw at the hearing in camera the case filed by the Municipal Consumer Ombudsman in S. acting as a group representative of the group consisting of (names of group members) against (…) joint stock company in W. for ascertainment, following the Claimant’s complaint against the decision of the Regional Court in Warsaw dated 23rd October 2015, file ref. no. II C 269/15
decides to:
- correct the obvious mistake in the introduction of the contested decision as follows: to indicated indicate 23rd October 2015 as the date of issuance of the decision
- amend the contested decision to hear the case in group proceedings.
- In the stage of certification, the premises of admissibility of the group proceedings, which are assessed by the court, are limited to the issues provided for in Article 1.1 and 1.2 of the Act on Pursuing Claims in Group Proceedings: the quantity of the group (at least 10 people), homogeneity of the claims, the same or similar factual basis and objective ability of being examined in group proceedings. The assessment of the substantive reasonableness of the claims is not recognized at the stage of the admissibility of the group action, is beyond the scope of the assessment of the admissibility, as this takes place in the subsequent stage of proceedings.
- The phrase “similar (equal) factual basis” means the situation in which the claims are based on similar events. This term corresponds to the same factual basis in the concept of formal joint participation.
- The dissimilarities between the standards applicable to each member of the group, as well as dissimilarities between the circumstances in which particular contracts were concluded, do not exclude the possibility that the precondition of the same or similar factual basis will be satisfied, as the main circumstance which determines the admissibility of the group proceedings is the identical mechanism introduced by formally independent standards declared by the claimant. This fact is also not changed by the different amounts of the contributions and the frequency of their payment or different amounts of the fees of redemption applicable to particular group members. Members of the group base their claims on the same provision, that is on the contract clause, subject to which the defendant may charge the fees of redemption, which were (in the members’ opinion) grossly excessive and restricted the possibility of the termination of the contract. The claims are not based on the same factual basis, but on similar (equal) factual basis within the meaning of Article 1.1 of the Act on Pursuing Claims in Group Proceedings.
The Court of Appeals in Warsaw 1st Civil Division in the following ruling bench:
Bogdan Świerczakowski, Court of Appeals Judge (rapporteur)
Robert Obrębski, Court of Appeals Judge
Beata Byszewska, Court of Appeals Judge
having examined, on 24th February 2016 in Warsaw, at the hearing in camera, the case filed by the Municipal Consumer Ombudsman in S. against (…) S.A. with its registered office in W. for the establishment of the defendant’s liability following the defendant’s complaint against the decision of the Regional Court in Warsaw of 13th October 2015, file ref. no. XXIV C 500/14,
hereby decides to:
- dismiss of the complaint,
- entrust the Regional Court in Warsaw to decide on the costs of the proceedings relating to the complaint in the final ruling.
- For assessing whether consumers’ claims are based on a similar factual basis, the potential disposal to other individuals by consumers who previously purchased tickets, is of no significance. This is because all consumers indicated in the statement of claims as buyers of the tickets – parties to an obligational relationship binding them with the defendants, are entitled to the claims for payment on the grounds of previously purchased tickets. The factual basis of pursued claims is therefore similar and it results from a single event, i.e. purchasing of tickets and participation in a sports event organised by the defendant.
- The entry in an appropriate register of entrepreneurs is of no significance for assessing whether a given entity conducts a business activity. Neither it is of significance for such an assessment the allocation of income obtained from the above-mentioned activity. The fact that the defendant operates in the legal form of an association does in no way exclude a possibility of conducting a business activity, particularly one that generates profit.
