- In group proceedings the demand must be typical for all the claims. Therefore, the demand raised in group proceedings by the group’s representative must be typical for the entire group he or she is representing. The indicated condition means that a legal or factual situation of the group members must be 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.
- The group’s representative is obligated to prove a given person’s membership in the group before the court. It is a prerequisite allowing for the inclusion of a specific person within a group bringing a group action in cases on pecuniary claims.
The decision was reversed by the decision of the Court of Appeals in Warsaw of 31st March 2015, file ref. no. I ACz 166/15.
- The scope of the action is determined by the claimant and the statement of claims determines the frames of the further proceedings. However, the scope of the proceedings is not identical with the scope of the statement of claims. The proceedings do not always use all the factual circumstances indicated by the claimant, it is also necessary to establish facts not indicated in connection with the claim’s construction. The scope of proceedings will in the future determine the scope of adjudication of the case. In examining the admissibility of the group proceedings, the court must first and foremost assess what claim the claimant is bringing forth and what circumstances the claimant should prove with this claim. Only in further order it is possible to assess whether these circumstances will pass the test from Article 1 of the Act on Pursuing Claims in Group Proceedings.
- An action for the establishment of liability is an action for establishing a principle, without awarding compensation. In the frames of an action for the establishment of liability the court does not examine circumstances impacting the determination of the compensation amount.
- In the Polish legal system, participation in the group is voluntary. Potential joining to the group after the action is allowed to be examined in group proceedings entitles the defendant to file allegations related to membership in the group. The grounds for such an allegation may also be the lack of the similar factual basis of the joining member’s claim. At the stage of the assessment of admissibility of group proceedings there are neither grounds nor the need to examine the factual circumstances in the context of potential future members of the group.
- The assessment of the State Treasury’s liability towards individual members of the group must have an individualised nature. The domination of elements individual for group members over common issues renders the settlement of the case concerning tortious claims impossible in group proceedings.
- Deciding on the admissibility of group proceedings is the first stage of the proceedings and constitutes the form of a unique prejudication, unrelated to the content-related assessment of the legitimacy of the claims pursued in the statement of claims.
- The Act on Pursuing Claims in Group Proceedings does not contain a definition of a consumer protection case or a definition of a consumer. Therefore, invoking Article 221 of the Civil Code, it is fitting to indicate that a consumer is considered to be a natural person performing an act in law not directly related to their economic or professional activity.
- The role of the group representative filing a statement of claims in a group proceedings consists in providing a convincing substantiation that pursued claims of all group members, grounded on many legal bases, are based on the same or equal factual basis.
- If each of the members of the group identifies the damage inflicted thereupon by the defendants with the loss of funds paid to the company in performance of the agreements concluded therewith and predicted profits, then from this point of view, the type of agreements and conditions of their conclusion become a substantial, differentiating circumstance of the factual status.
- The legislator rendered the notion of a “subgroup” more precise – it covers at least 2 persons whose claims, due to varied circumstances concerning individual members of the group, may not be standardised in the frames of a group. A subgroup is comprised of a set of parties whose claims, due to the occurring diversification (rendering standardisation within the group impossible), are standardised by forming a separate set of parties (called a subgroup).
- The standardisation of claims in the frames of a subgroup consisting solely on the fact that group members’ claims are being adjusted to the value of the lowest of them, without indication of other than the value of the damage criteria for claims standardisation, in the face of many differentiating factual circumstances existing in the case, seems insufficient.
The decision was changed by the decision of the Court of Appeals in Warsaw of 3rd June 2015, file ref. no. VI ACz 479/15.
- In order to speak of the sameness of the factual basis substantiating a possibility of pursuing claims in group proceedings, prerequisites for the emergence of claims should be common for all participants of the group.
- Diversification of the factual circumstances impacting the form and extent of the damage makes it impossible to establish the sameness of the factual basis. Such a diversification occurs if damage of each member of the group may have emerged in a different form – depending on the factual status related to a specific member of the group.
- If the claimants’ claims remain in no connection with the need to protect the consumer against a stronger participant of transactions, i.e. the claimant does not demand special protection due to his status as a consumer, but only seeks compensation in relation to the emergence of premises of compensatory liability, then such a case is not a consumer protection case, even if the claimants’ claim is contained in the model contract which may be subject to assessment in the scope of abusiveness.
- On the grounds of the Act on Pursuing Claims in Group Proceedings, it is of no significance whatsoever whether claims arise from the same or from different legal relationships. The provision of Article 1.1 of the Act provides only that claims should be based on the same or equal (similar) factual basis. In the case a diversification of the situation of the members of the group undoubtedly occurs in the scope of such circumstances indicated by the defendant as: different content and terms of insurance agreements, application of various standard contract terms, participation of various agents and persons performing agency activities, or various manners of realisation of substantial information obligations by parties brokering the conclusion of agreements. These circumstances may not, however, influence the assessment of homogeneity of the factual basis of the action. It should be emphasised that in the case being heard, the issue is the agreements concluded with the use of the same standard terms including a contentious clause concerning the insurer’s right to collect glaringly extortionate fees constituting the entirety or a part of the policy account value in the event of termination of the insurance agreement. In truth, each of the agreements included an identical provision specifying the value and the manner of calculating the policy redemption fee. Also, the circumstance that each member of the group could differently understand the meaning of the contentious clause is of no significance for the identicalness of the factual basis of the action.
- The consumer ombudsman was awarded the capacity to be a party in group proceedings directly in Article 4.1 in conjunction with Article 2.2 of the Act on Pursuing Claims in Group Proceedings, i.e. in consumer protection cases. The content of the quoted provisions corresponds in this scope with the content of Article 42.2 of the Act on Competition and Consumer Protection and Article 633 of the Code of Civil Procedure, under which in consumer protection cases, the district (municipal) consumer ombudsman may initiate actions on behalf of citizens. It is precisely the provisions of the procedural law nature that are decisive for the consumer ombudsman’s capacity to be a party in court proceedings and its position in litigation. The consumer ombudsman’s capacity to be a party in court proceedings is independent of the territorial scope of his or her operation. Group members may entrust the function of the group representative to a consumer ombudsman from any city or district in the territory of the state.
- An agreement concluded by a group representative – a district consumer ombudsman – with an attorney does not create any financial obligations on the part of the ombudsman or a local territorial authority that employs him or her. Hence, the conclusion of such an agreement did not require a separate consent on the part of the district treasurer or a person authorised thereby.
- The deposit is to serve the purpose of securing the defendant’s potential claim for the reimbursement of the costs of proceedings, in the event of difficulties in enforcing them from the group’s representative. The defendant bears the burden of proof that the non-establishment of a deposit for securing future claim for awarding the reimbursement of the costs of proceedings will render the execution thereof impossible or create substantial difficulties in the execution thereof.
- The commonality of the basis of pursued claims substantiates the possibility to join claims in a single group action. The entities in the group are characterised by a specific bond of a subjective and objective nature. The subjective bond pertains these members of the group who suffered damages as a result of the perpetrator’s single action. In a class action these persons pursue claims form a single entity (violator). In turn, subjective uniformity is related to the type of violation which results in pursuing claims jointly by the group becoming substantiated and possible. The bond existing between the group’s members must be based on the same or equal factual basis. Claims based on an common factual status are claims which share the same factual basis (a sensu stricto precondition) or claims sharing relevant factual circumstances (a sensu largo precondition). The indicated condition means that the legal or factual situation of the group’s members must be equal. Obviously, there may be insignificant differences between individual grounds of claims, however, it is necessary for the relevant factual circumstances to substantiate the demand common for all the claims.
- It does not belong to the Court to settle any content-related prerequisites of the claims at the present stage of the proceedings, nevertheless, the goal of the passed act (the Act on pursuing claims in group proceedings) is for the potential judgement to identically affect all participants of the group, that is to say that the situation where the statement of claims is allowed only towards a part of the group and it is dismissed in relation to the remaining members is inadmissible. Only differentiation in terms of the awarded amounts is admissible.
- The identity of the legal basis should allow the Court to generally uniformly assess claims of all members of the group.
- The claims can be considered as homogenous when they result from one type of legal relationship. Claims pursued by the group’s representative are claims for compensation, resulting from the defendant’s tort, hence they are homogenous claims.
- A factual basis of the claims in group proceedings is a set of statements indicated by the group’s representative in the substantiation of the statement of claims from which the claim of each of the group members expressed in the said statement of claims is derived. An equal factual basis of claims can be spoken of when the fundamental factual circumstances comprising the basis for the demand of the statement of claims are similar.
- In the case of tortious liability, the commonality of the factual basis is preserved when all factual circumstances comprising the grounds of the defendant’s liability occur in relation to all the group members. Therefore, these must be common for all the group members: damage-causing events, a causal link between these events and the damage and the damage itself. Claims stemming from the same type of event (tort) may be recognised as based on the equal (similar) factual basis.
- The issue of the existence of the causal link between the defendant’s specific actions and omissions and the occurrence of damage to an individual undoubtedly belongs to the sphere of factual circumstances resting at the basis of the action. Hence, it is not possible to hear a case in which this issue is differently shaped for various members of the group in group proceedings.
- The objective of the proceedings in the case for the establishment of the defendant’s tortious liability is determining a homogenous principle of the defendant’s liability towards all members of the group and parties which may acquire this status. As it follows directly from the Act on Pursuing Claims in Group Proceedings (Article 2.3) in a declaratory action conducted in group proceedings, the claimant does not have to demonstrate the existence of a legal interest. Such a regulation stems precisely from assuming that – in tortious liability cases – the damage occurrence mechanism is equal for all the members of the group.
- Claims based on Article 446.3 of the Civil Code, which aim at remedying the damage consisting in significant deterioration in living standards due to the death of the closest family member who died in a construction catastrophe, are of an individual nature and require the factual circumstances concerning the entitled party’s relationship with the deceased to be examined in detail by the court, which opposes the construction of group proceedings and does not allow the existence of legal relationships identical towards all members of a given group to be assumed, and hence the existence of an identical (the same or equal) factual basis to be assumed.
The decision was reversed by the decision of the Supreme Court of 28th January 2015, file ref. no. I CSK 533/14.
- The basis for assessing the consumer nature of claims has to be their source – contracts, in which the group members acted as consumers. Persons who signed – not in the scope of theirs business activity – contracts with the housing cooperative on building or buying rights to the flats and parking places – are consumers.
- The situation of group members should be identical at a glance and cannot require the hearing of evidence at the preliminary stage of the proceedings, when the general premises of group proceedings admissibility are examined. Claims of group members are not based on a common factual basis, if the hearing of evidence should be conducted differently in respect to some of as opposed to the other group members.
- Provisions concerning group proceedings emphasize the status of a group representative as a sui generis agent, who acts in his own name but in favour of the group. A representative is obliged to return everything to the group members that he or she gained for them while performing the duties of a group representative. If the group members incurred costs of professional legal representation in proceedings handled in favour of them, they are entitled to reimbursement if the judgement awarding costs to the claimant is issued.
- In group proceedings it is necessary to distinguish between claimant in the formal and substantive meaning. Although a court decides about the legitimacy of the substantive claims of the group or subgroup members, and by allowing the claims it indicates the amounts due to the group or subgroup members, and though judgement in that regard is an enforcement title, there is the only claimant in these proceedings, and it is the group representative. Although the group or subgroup members may be heard as parties, none of them are parties to the proceedings.
- Since group or subgroup members are not parties to group proceedings, it is impossible to reject a statement of claims in relation to them. The court’s prerogative to exclude someone from the group appears after the validation of decision on the admissibility of group proceedings, at the stage when new persons are joining to the case. Before that moment, the court is not entitled to modify the group’s composition.
- In group proceedings, it is inadmissible to partially reject a statement of claims, in relation to some group or subgroup members. The claim – in its procedural meaning – is one, adjudged with the claimant – the group representative. There are no grounds for division of this claim and for its partial rejection.
The decision was reversed by the decision of the Court of Appeals in Warsaw of 21st November 2014, file ref. no. VI ACz 4250/14.
