A regional consumer ombudsman (in the name of 1247 consumers) against MBank (previously: BRE Bank)
The class representative claimed that the bank used an unfair contractual term in its mortgage contracts.The class members claimed they were overcharged.
Regional consumer ombudsman as class representative, mortgage loans amortised in Swiss Francs, unfair contractual clauses, breach of contract, standardisation of monetary claims, declaratory relief claim
I CSK 533/14, decision of 28 January 2015
Brought by families of those who died in the collapse of the Katowice Trade Hall. They alleged that the General Building Supervisor and a number of other public and local authorities were liable for their monetary damages related to losing a close family member.
Tort liability of public authorities, claims for the protection of personal interests, claims with the same or similar factual basis, declaratory relief claim
Court of Appeal of Krakow (Sad Apelacyjny w Krakowie), District Court of Kielce (Sad Rejonowy w Kielcach)
Class Action: Local authority to reimburse payments requested by its decision which was later annulled.
Standardisation of pecuniary claims, claims against local authorities.
Court of appeal of Lodz (Sad Apelacyjny w Lodzi), District Court of Lodz (Sad Rejonowy w Lodzi)
Class Action: declaratory relief (liability only) claim against a bank for using an unfair contractual clause and for declaration that the bank should repay amounts paid following the use of this unfair clause.
Class action brought by a consumer ombudsman, declaratory relief, unfair contract terms, funding of class actions, class not liable to pay court fees and other costs (such as expert fees) if consumer ombudsman brings class action, cost shifting in class actions, tariff for lawyers' fees.
Supreme Court (Sąd Najwyższy);
Class Action: mandatory legal representation for consumer ombudsmen as class representatives.
Class Action brought by consumer ombudsman, Class representative, Legal representation, consumer ombudsman
The Warsaw Court of Appeal,
Class Action: scope of application of Class Actions Act. Act not applicable and thus class cannot be certified if less than 10 class members have non-personal claims (claims not involving protection of personal rights).
Class Actions Act - scope of application, claims for the protection of personal rights, personal injury claims
1. Judgement of the Court of Appeal of Krakow: Wyrok Sądu Apelacyjnego w Krakowie - I Wydział Cywilny, of 7 April 2014, (I ACa 137/14)
Keywords: Standardisation of pecuniary claims, claims against local authorities.
The Court of Appeal rejected the appeal against the judgement of the District Court of Kielce of 29 October 2013 (I C 2581/13) in a case against a local authority brought by a number of people resident within the scope of the authority's jurisdiction. The case concerned a decision by the authority (taken in 2005) by virtue of which the authority required the residents to contribute financially to the cost of construction of a communal water supply system and their connection to it. The decision was later annulled by an administrative court. The class members claimed that they suffered financial loss as a result of having to pay following a decision which was later annulled. The legal basis for the claim was Article 417 of the Civil Code (liability of public authorities for damage caused by a normative act) - thus, the claim was within the scope of the Class Actions Act as a tortious liability claim.
The case involved pecuniary claims for reimbursement of the amounts paid (plus interest), hence the class members had to standardise their claims according to the requirement in Article 2 of the Act. This was straightforward - it was clear how much each class member paid towards the costs of the waterworks. There were 12 sub-classes (64 class members altogether), claiming between 400 PLN and 1,300 PLN.
The authority argued that the amounts should not be reimbursed, as the residents benefited financially from their own houses being connected to the water supply system. Even though the decision requiring them to contribute to the costs of the construction was annulled as abuse of power, the authority argued that it was entitled to charge for the cost of the connection. Neither the Appeal Court nor the District Court denied this (thus - it was admitted that the authority may recover the costs of the connection from the residents at a later date). Both courts agreed, however, that the principles of accounting in local investment projects, as well as current administrative law, do not allow compensatio lucri cum damnum. The claimants were entitled to reimbursement of amounts paid (plus interest), and to reimbursement of the costs of legal representation.
2. Judgement of the Court of Appeal of Lodz, of 30 April 2014, IACa 1209/13, lACz 1424/13
Keywords: Class action brought by a consumer ombudsman, declaratory relief, unfair contract terms, funding of class actions, class not liable to pay court fees and other costs (such as expert fees) if consumer ombudsman brings class action, cost shifting in class actions, tariff for lawyers' fees.
The Court of Appeal rejected the appeal against the decision of the District Court of Lodz of 3 July 2013 (II C 1693/10) in a case of over 1000 customers against BRE Bank (now MBank).
The case concerned a dispute between BRE Bank (now renamed MBank) and many of its customers who had mortgages in Swiss Francs. The mortgage contracts signed between 2003 and 2006 had a clause which enabled the Bank's Board to set the interest rates according to criteria which were not clearly specified (including LIBOR as well as 'the relevant conditions of financial and capital markets'). During 2006, when LIBOR rates were increasing, the bank increased the mortgage rates accordingly. During 2008 and 2009, even though the LIBOR rates were going down (by 2.4% on average) the bank decreased the mortgage rates only by 0.4%. The justification was that the other market conditions did not allow to decrease the rates any further. Following media attention and a growing number of internet forums where unhappy customers were exchanging views, the Bank renegotiated contracts with some customers (they paid slightly higher rates but these rates were clearly calculated using LIBOR and a fixed mortgage fee). Others, however, were not satisfied with renegotiation and demanded back the money overpaid during 2008-09. The case was brought by the Regional Consumer Ombudsman of Warsaw (acting as class representative) in 2010.
The claim concerned mere declaration of contractual liability of the bank (declaratory relief) for using the unfair contractual clause. Thus it was supposed to (if successful) constitute the basis for later individual settlements or litigation where individual customers would demand the amounts they overpaid.
The Regional Court did not allow the Bank to present evidence concerning the market conditions which the latter argued were the rationale for its decisions concerning mortgage rates. According to the Court, these conditions were not relevant in determining whether the clause in the mortgage contract was unfair (within the meaning of the Unfair Contract Terms Directive (93/13/EC), as implemented into the Polish Civil Code - Article 385¹ para 1). The clause itself was unfair because it gave one party (the bank) the possibility to unilaterally change the rates using 'market conditions' which is an open category and its determination is entirely within the control of the bank (the bank was not obliged to change the rates). The manner in which the clause was drafted did not enable consumers to establish with any certainty the way in which their mortgage rates would be calculated (thus - the clause was unclear). Having concluded that the clause was unfair, the Court held that it did not bind consumers. Thus, while consumers were still bound by the rest of their mortgage agreements, their rates should have been set as if the unfair clause did not exist (they should be fixed). Accordingly, the Court declared that the bank is liable for repayment of the money overpaid by the customers plus interest.
The Court of Appeal agreed with these arguments.
There were some other issues in this case which concern costs of litigation and their assessment for cost-shifting purposes.
First of all, no court fees were payable by the Consumer Ombudsman as class representative. The question was, however, whether the class members were liable to pay any court fees, or to pay any other expenses which may arise during litigation (for instance expert fees). Both courts agreed that no court fees or other costs are payable by the class members in cases brought by the Consumer Ombudsman. Upon making the costs decisions after proceedings in each instance, the Courts followed the 'loser pays' principle as prescribed by the Code of Civil Procedure (Article 98). Thus, in this case the Bank as the losing party was requested to pay the 100,000PLN court fee and the costs of expert opinions which amounted to over 4,000PLN (it was also made clear that if the class lost the case, the court fees and other costs would be covered by state). This decision was a result of a conclusion that in class actions the class representative is the formal party to litigation, and class members are merely parties in a substantive/material law sense which does not entitle them to actually formally participate in the proceedings.
The latter conclusion also resulted in the refusal by both courts to award costs of legal representation to each class member, and only to award these costs to the class representative. The class members agreed with the law firm representing the class (Wierzbowski Eversheds) to pay fees upfront (no contingency fee element in this case - it is a declaratory relief claim only and thus no 'amount obtained for the class' can serve as a basis for the contingency). The amounts were between 1,000 and 2,000 PLN + 22% Vat. An additional, smaller amount was due from each class member for the appeal proceedings. In awarding the costs of legal representation to the winning party (the Class Representative), both Courts followed the principles of the loser pays rule applicable in the Polish civil proceedings (Article 98 of the Code of Civil Procedure), and applied the tariff system for shifting lawyers' fees as established by the Regulations of the Minister of Justice on remuneration for barristers and for solicitors (para 2.1 and para 2.2). According to the Regulations, legal fees are only to be recovered from the losing party up to the maximum amount specified according to the type and value of the case (the Regulations contain an exact tariff with amounts payable). These maximum amounts may in exceptional circumstances be increased by up to six times if the case is particularly complex or costly.
The issue here was whether the costs of legal representation should be allowed for each class member individually (thus leading to a higher amount awarded overall), or 'per case' only to the class representative. The representative - the Consumer Ombudsman - was awarded the maximum amount specified by the Regulations for a case of this value, multiplied by six (both in the first instance proceedings and in the appeal proceedings). Recovery of any amounts due to class members was deemed to be entirely left to an internal agreement between the lawyers, the class representative and the class members. It is clear that class members will not recover the actual amounts paid to the lawyers (this is a typical outcome of civil cases in Poland as the tariff system always limits the amounts recoverable).
3. Supreme Court: uchwała SN z dnia 13 lipca 2011 r., sygn. akt III CZP 28/11
Keywords: Class Action brought by consumer ombudsman, Class representative, Mandatory legal representation, Consumer ombudsman
A class action of 14 former railway employees was brought against their life insurance company AŻTU S.A. by a regional consumer ombudsman for the Tarnów powiat (district). The suit was brought directly by the ombudsman without legal representation and was initially rejected with no justification by the regional court of Tarnów. The Court of Appeal had doubts concerning the issue, as, at least initially, the draft Class Actions Act contained an exemption from the requirement of obligatory legal representation for consumer ombudsmen and this exemption was only eliminated by the final Parliamentary work. The Supreme Court confirmed that the Act requires legal representation of all class representatives, except for cases where they themselves are lawyers (and consumer ombudsmen are not necessarily lawyers). In cases where such class actions are brought without legal representation, a court may reject the suit with no justification.
4. Warsaw Court of Appeal
Keywords: Class Actions Act - scope of application, claims for the protection of personal rights, personal injury claims
In April 2011, the Warsaw District Court refused to certify a class action for victims of the collapse of the International Trade Hall in Katowice. In September 2011, the Warsaw Court of Appeal rejected the complaint against this decision, making it final. The District Court interpreted Article 1.2 of the Class Actions Act as meaning that a class action is admissible only if class members have non-personal claims (claims which do not concern protection of personal interests, like personal injury or death). The Court held that, as only 5 out of 16 class members had such claims, it was not possible for the class to be certified (the Act requires at least 10 people to create a class). The decision confirmed the fears of some academic writers who argued that the exclusion of protection of personal interests unduly limited the use of class actions in the very cases which the legislator intended to cover - relatively small value personal injury cases. On the other hand, the Court seemed to have been open to the possibility of certifying the class by limiting it to those with non-personal claims instead of rejecting the entire suit. Irrespective of this, the lawyer representing the class called the decision 'the death of class actions in Poland'. The fact remains that according to the two courts, once personal injury is involved, personal interests are involved, and this excludes the application of the Class Actions Act. It is likely that the matter will end up in the Supreme Court, and yet so far the future of personal injury cases in a class actions context in Poland remains bleak.
1. Regulations of the Minister of Justice of 28 September 2002 w sprawie oplat za czynnosci adwokackie oraz ponoszenia przez skarb panstwa kosztow nieoplaconej pomocy prawnej udzielonej z urzedu (on barristers' fees and legal aid) and w sprawie oplat za czynnosci radcow prawnych oraz ponoszenia przez skarb panstwa kosztow nieoplaconej pomocy prawnej odzielonej z urzedu (on solicitors' fees and legal aid), published in Dziennik Ustaw (Journal of Laws) of 2002, No 163, items 1348 and 1349.
2. Decision of 8 April 2011, II C 121/11. Not published. The collapse caused deaths and injuries. 16 victims and their families brought the class action in 2010. The judge made it clear that his decision by no means reflected the value of individual claims of each victim or family. His decision only concerned suitability of the class actions procedure for these claims.
3. Mec. Adam Car in Gazeta Wyborcza, 30 September 2011, 'Odrzucenie pozwu zbiorowego ws. katastrofy hali MTK - prawomocne' (rejection of a class action in the MTK Hall case - final and enforceable), Click here. Mec. Car also spoke of his intention to bring a cassation claim to the Supreme Court (ibid.), as in his view constructing an artificial distinction between different class members is 'nonsense' (ibid.).
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