- The notion of a “claim” – used in Article 1 of the Act on Pursuing Claims in Group Proceedings – appears in the meaning of a procedural demand. The first precondition deciding on the admissibility of group proceedings is therefore for all the parties covered by the group action to request for the granting of legal protection in the same form.
- The homogeneity of claims in group proceedings is, ultimately, decided by the factual relationship occurring between the demands raised. A broad understanding of the term of a “claim”, used in Article 1 of the Act on Pursuing Claims in Group Proceedings is subject to narrowing by complying with the requirement for the same or equal factual basis.
- At the stage of the examination of the admissibility of a group action, the court does not assess whether the claim of a member of the group is legitimate or not, but only whether the claims of the group members are based on the same or equal factual basis. The court assesses whether the claims fulfil the conditions for filing a group action in terms of the factual circumstances being indicated.
- In assessing the admissibility of hearing the case in group proceedings, the court should not so much examine whether claims of 10 parties, a mandatory minimum, comply with the requirements, but whether the claims of all persons as members of the group are indeed based on the same/equal factual basis.
- The court may not assume that a group action is admissible in relation to an abstract group, the personal composition of which would be established only at a later stage of the proceedings. During the first phase of the group proceedings, the court must establish the admissibility of a group action in relation to a group, whereby this group is comprised of specific parties, whose claims fulfil preconditions for hearing the case in a group proceedings.
- The representative forms a group at the stage of filing a statement of claims, and it is the representative who should examine whether each of the members of the group indicated by him or her fulfils the requirements of Article 1.1 of the Act on Pursuing Claims in Group Proceedings. The negative consequences of omissions in this scope, resulting in rejection of the statement of claims, rest with the claimant. The burden of proving a group member’s membership rests with the claimant.
- The representative should perform a preliminary selection of parties intending to join the group. The representative may demand such parties to present explanations and evidence. If the representative finds that a given party’s claim does not qualify to be examined in group proceedings, there are no grounds to force the representative to cover such a party’s claim by the group action. The correctness of establishment of the composition of the group is verified by the court in a decision on the admissibility of group proceedings.
- Evidentiary proceedings are conducted before the court both during the first (concerning admissibility of group proceedings) and the second stage of group proceedings (on establishment of the composition of the group).
- The question of the statute of limitations constitutes a substantive question subject to examination only after ascertaining that a group action is admissible. The court decides on the legitimacy of the claims being pursued only during the third, content-related stage of the group proceedings. At the stage of examination of admissibility of group proceedings, the court may not entertain substantive law issues at all.
- Receiving the consent of all members of the group to standardisation of claims (lump sum compensation) by the court constitutes a necessary condition for initiating group proceedings. In a situation where, due to the circumstances of the case a lump sum determination of the value of compensation is impossible, the legislator allows for the possibility of forming subgroups. Subgroups are comprised of parties whose claims, due to the occurring differences, are standardised in smaller groups. We are dealing with such a situation in the event where the court establishes a different nature of damages sustained by members of the group, or differing value of damage.
- Assuming that alternative demands are admissible in group proceedings, the court hearing the case would have to examine whether it has been demonstrated that the claim covered by an alternative demand is based on the same/equal factual basis, already at the stage of assessment of the admissibility of group proceedings.
- The subject of each proceedings is the claim, in the formal meaning, and it is its contents that indicate what the claimant party demands from the opposing party as well as what form of the protection of their rights they are expecting to obtain by means of seeking redress. It is obvious that the content of the procedural claim will be dependent on the legal situation of the claimant who makes (specifies) this claim and who will strive towards implementing the relevant substantive law norm (or possibly several norms) in the proceedings that will be pending before the court.
- The requirement of the identical or similar (equal) factual basis does not mean the requirement for all of the elements of the factual grounds in the case of each of the claims to be identical or equal. It is sufficient for a common element to exist in the scope of the factual circumstances, constituting a basis for the claim of the group members, meaning the event that caused damage.
- The opinion that with the assessment as to whether we are dealing with the homogeneity of the claims the criteria from Article 72 para 1 and 2 of the CCP (Polish Code of Civil Procedure) should be applied is incorrect. The premise of homogeneity is more broadly understood on the grounds of the act than against the background of procedural joint participation (Article 72 para 1 point 2 of the CCP), which requires the claims to be based on an identical factual and legal basis, in opposition to Article 1 section 1 of the Act (Polish Act on pursuing claims in group proceedings), which does not place such a condition.
- In a group proceedings, participation of many entities on the defendant side is admissible. This is not in contradiction either with the aim of the Act, or its specific provisions. In the event of many parties appear on the side of the defendant, the provisions of the CCP on joint participation apply, and in group proceedings, the claims pursued by several persons jointly liable for torts, are indicated as an example.
The decision was set aside with the decision of the Court of Appeals in Warsaw of 18th February 2014, file ref. no. I ACz 22/14. The thesis questioned by the Court of Appeals in Warsaw have been italicized.
- Disruption of gaining profits from the conducted business activity is undoubtedly a case of violating one’s personal rights. The location of the claim aimed at personal right’s protection and also whether this is an absolute protection (without fault) – as in the case of means of protection stipulated directly in Article 24 of the Civil Code, or relative – as in the case of means of legal protection resulting from the perpetration of a tort, is without any meaning.
- In the scope of formal requirements, the legislator finally accepted the procedural limitations of group actions through the imposition of the requirement of the same or similar (equal) factual basis of the claims, as well as the standardization of the claims of each member of the group, in consideration of the common circumstances of the case.
- The literature presents an opinion that the same legal basis of the claim (identity of the factual circumstances) takes place when there is a bond between the members of the group, based on the unity of a legal event. This would mean that the requirement of the same factual basis would be fulfilled through the indication by the claimant, of the event in the form of the broadcasting forbidden advertisements. Such an opinion cannot be agreed with. Such a factual basis of the claims would be sufficient in the event in which the claimant would pursue only the establishment of compensatory liability. However, in the present case, the claimant is not only pursing the establishment of compensation liability, but also further consequences, resulting from this fact, meaning the compensation for damages. And in such a case, apart from the event causing damage, the circumstances substantiating the extent of the damage and the causal link between the event and the damage should be indicated, as not every relationship is relevant but only an adequate causal relationship. i.e. covering the normal consequences of a given reason.
- The aim of the group proceedings is enabling access to court as well as speeding up the proceedings with the significant lowering of their costs, while the group action alone is to become the instrument enabling fast and effective pursuit of claims by consumers as well as by entrepreneurs.
- Ultimately, the homogeneity of this type of claims in this type of proceedings is decided by the factual relationship occurring between them. It should be emphasised that it is precisely this relationship that eliminates claims of different type from those raised.
- The factual basis of the claims must be the same or equal. This means that the broad understanding of the notion of the “claim”, used in Article 1, is subject to narrowing at the fulfilment of the factual link requirement. Claims raised by group members must, therefore, be based on the same (identical factual basis) or similar (identity of the factual basis) factual basis. They should arise from one event (the same event) or events similar to one another. Which consists of facts substantiating the existence of specific legal relationships. The factual link will occur when it comes to certain events of tortious nature in the situation when it is possible to abstract factual circumstances common for the entire group, at the basis of which there are factual bases of each individual claim of the group member.
- The factual basis of the group proceedings is a set of factual circumstances substantiating the examination of the case in group proceedings. They consist, in principle, only of facts substantiating the existence of specific legal relationships. Hence, in the event of tortious liability, homogeneity of the factual basis would be preserved if all factual circumstances constituting the basis of the defendant’s liability would be materialised in relation to all members of the group, while the character and type of individual claims, their value or maturity, would belong to circumstances not impacting the homogenity of the factual basis of the group proceedings, and thus – its admissibility.
- Assessment of homogenity of the factual basis must have been performed ad casum, while the scope of the judge’s assessment in the case of this precondition was relatively broad. For only seemingly does this premise have an objectivised nature. In truth, the decision on admissibility of the group proceedings was dependent on the circumstances of the case and adopted criteria for assessment of the factual basis’ sameness as well as the scope of circumstances adopted as the common basis for group members’ claims.
- The notion of common circumstances of the case, although presently occurring only in Article 2 section 1 of the Act, may not be completely ignored and constitutes a certain point of reference also in the context of interpretation of Article 1 section 1 of the Act.
- The formal requirements indicated in Article 12 of the Act of 17 December 2009 on pursuing claims in group proceedings of a declaration on joining to the group applies also to those persons who are initially acceding to this group.
- The legislator recognized that the condition for the initiation of group proceedings is (apart from the fulfillment of the subjective premise) the pursuit of claims fulfilling the premises indicated in Article 1 section 1 of the Act. The pursued claims have to be homogeneous, meaning of one type, and based on the common factual basis. The claims based on the common factual basis are claims, the basis of which constitute the same factual basis (premise in the narrow sense) or claims, whose significant factual circumstances are similar (equal, premise in the wide sense). Of course, differences can exist between the individual grounds of the claims, however, it is necessary for the significant factual circumstances to substantiate the common demands for all of the claims.
- The institution of securing the costs of the group proceedings is of a non-mandatory nature. The possibility of obligating the claimant to its submission lies within the competence of the court. The deposit serves the protection of the interests of the defendant against unsubstantiated statements of claims, when the claimant’s asset status does not give a warranty of their covering. The payment of a court fee on the statement of claims by the claimant, and also a significant number of persons joining to the group seems to prejudge the lack of legitimacy of the demand derived from Article 8 section 1 of the Act.
- 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.
- According to Article 1 section 1 of the Act (Polish Act on pursuing claims in group proceedings), the claims pursued in group proceedings should be of one type, which means, that the members of the group are pursuing granting of legal protection in the same form – they have to submit the same request (demand).
- We are dealing with “the same” (identical) factual basis of the pursued claims when the identicalness of the factual circumstances takes place, and the legal protection is pursued by the participants of one event, meaning that there is a link based on the fact that the same event caused the damage. “Similar” (equal) factual basis means a similarity between the individual factual statuses. We are dealing with “equal” factual status when many similar factual events take place, i.e. using the services of one bank, taking one medication, becoming poisoned by the same food product, abusive clauses in loan and developer agreements, etc. The basic set of facts constituting the basis of the occurrence of the disputed legal relationship and a specific claim have to be analogous. The notion of “factual basis” should be understood as a specified set of elements of the factual status, which are invoked in order to prove the statement of claims.
- The factual basis in the meaning of Article 1 section 1 of the Act is only the basic (initial) set of facts substantiating the claim and discrepancies as to the facts substantiating only the amount of the claim are not an obstacle in recognizing the group proceedings as admissible. Nevertheless, application of the construction of group proceedings is substantiated when there is a set of preconditions which allow for uniform subjective qualification of the illegality of the causal action which resulted in the damage, the compensation of which is the subject of the claim. The essence of group proceedings is the commonality, manifesting itself in the demand which must be typical (common) for all of the claims, the factual or legal situation of the group members must be equal.
- On the one hand the legislator does not require the identicalness of all of the factual elements, as this would highly narrow the scope of the application of the act, however, on the other hand, the group proceedings would not fulfill their objective – improvement in the effectiveness of proceedings in cases characterized by a significant level of the individuality of the facts and the characteristics of the individual group members. Group proceedings fulfill their role when we are dealing with “typicalness” or “representativeness” of the claim towards all of the group members. The condition of “typicalness” is fulfilled when a legal or factual situation of the group members is equal. Of course, slight differences can exist between the individual grounds of the claims, however, it is necessary for the material factual circumstances to substantiate the common request for all of the claims.
- In introducing the Act on pursuing claims in group proceedings the legislator bore in mind the introduction of such court proceedings which would at the same time protect the interests of many entities in single proceedings and eliminate the need to conduct parallel proceedings and repeating actions, which can be carried out on a one time basis. This referred to the comprehensive and quick settlement of the dispute. Taking this functional interpretation of the Act into account, the Court is of the opinion that the pursuit of claims on the basis of the provisions of this act is possible in the case in which there is a relationship between the claims covered under the statement of claims, which results in the fact that the joint ruling on them is profitable, that after the forming of the group’s composition the joint ruling and adjudication in the scope of all of the group members will be possible.
- Assessing the premises of examination of the case in the group proceedings, the Court examines the statement of claims with regard to the fulfillment of the premises included in Article 6. Article 12 applies in a situation where new participants join to the pending proceedings, who were not covered by the statement of claims, as a result of the issuance of a decision on the announcement on the commencement of group proceedings.
- The factual basis therefore is the same, as each of the members cites being misled and unaware of the conclusion of the agreement despite its factual conclusion, while it is of no importance on what date the agreement was concluded, as that circumstance does not have an impact on the admissibility of the examination of the case in group proceedings. The claim of each of the members should be qualified as based on equal grounds as it is based on identical agreement.
- At the present stage there is a lack of the generation of costs on the side of the defendant, which would create a premise obligating the claimant to secure the costs of the proceedings. The declaration of the defendants alone that they are at the stage of searching for a proxy, does not constitute a sufficient assumption to state that securing the costs of the proceedings is necessary.
The stance included in the thesis no. 1 was questioned by the Court of Appeals in Gdańsk in the decision of 14th May 2013, I ACz 464/13.
- 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 decision was reversed in part (in the scope of point 2) by decision of the Court of Appeals in Krakow of 7th December 2011, file ref. no. I ACz 1235/11. The thesis’ questioned by the Court are marked in italics.
- In Article 1 section 1 (unlike in Article 2 section 3), the Act uses the term claim in the procedural meaning. Against the background of the Act, homogenous claims are claims arising from the same type of legal relationship. This does not mean sameness of specific standards constituting the legal basis of the specific claims (substantive law claims). The notion of homogeneity thus understood, litigation claims with their source in one legal relationship, even if various substantive law claims were to arise therefrom, should be recognised as homogenous.
- A factual basis of the claim should be understood as the basic aggregate of facts constituting the basis for the arising of a contentious legal relationship and a specific claim. The scope of the factual basis does not extend to factual circumstances impacting the value, objective scope, or maturity of claims; these elements may, but do not have to be covered by the factual basis of the action.
- The requirement of the same or similar (equal) factual basis does not mean the requirement for all the elements of the factual status to be the same or similar (equal) in the case of each claim. It is enough if there is an element common in the scope of all factual circumstances constituting the basis of the group members’ claims.
- The defendants’ behaviours in a varying degree contributed to the bursting of the flood blank in Koćmierzów, and thus to the effect – damage to the group members’ assets, but they jointly constitute a single tort perpetrated by public authorities. The fact that not all defendants participated in the tort at specific stages thereof does not eliminate their joint and several liability for the damage.
- The defendants’ tort is of complex nature, it consists of an aggregate of interrelated actions and omissions, distributed in time, which led to inflicting damage onto multiple entities. A statement that to adopt the precondition of commonality of the factual basis of the claims is necessary for all group members to derive their claims from the same action or the same omission or the same action and omission of the defendants and that each of the group members should seek claims for compensation of damage of the same type (only damnum emergens or lucrum cessans) does not deserve to be approved. As all claims of the group members’ arise from such a complex tort, then it should be assumed that they are based on the same factual basis and the group members share a bond arising from the unity of the event which resulted in the damage.
- The criterion for separating cases in the frames of categories of claims arising from tort is the legal basis of claims. A group proceedings is admissible in the cases regarding claims pursued on the grounds of provisions of the Civil Code on tort, regardless of the type of events which the Act associates compensatory obligations with and regardless of the principle of liability.
- Common circumstances of the case considered at the standardisation of claim values should be referred to the precondition of commonality of the factual basis (Article 1 section 1 of the Act). However, it is a notion of a meaning narrower than “the same or similar (equal) factual basis”.
- The estimates of the costs of the proceedings are the necessary condition of the motion for security deposit, since the court in determining deposit value should bear in mind a probable total of the costs to be incurred by the defendant.
