How long do you have to wait for compensation after winning a class action to determine liability in Poland? 

Group proceedings have functioned in the Polish legal system for almost 14 years. So far, the vast majority of group proceedings initiated in Poland are proceedings in which the demand for a claim is aimed at establishing liability - that is, determining that the defendant entity is liable (usually for damages) for a specific event. After the conclusion of the group proceedings establishing liability, group members may seek specific benefits from the defendants through individual proceedings (e.g., for payment of compensation). Such actual limitations on the demand for a claim in group proceedings are a consequence of the requirement to standardize claims. The standardization of claims is one of the conditions for the admissibility of examining a case for monetary claims under group proceedings. It means that if monetary claims are involved, their amount must be uniform. Where a monetary claim is brought by the group, a collective action is possible only if the amount claimed by each group member is equal to the others (this may be done in sub-groups of at least two people). Before 2017, the Act required that the standardization be done by taking into account all the circumstances of the case. The courts requested that group members justify the standardization by specifying the exact factual and legal similarities between members of standardized groups or sub-groups. Not many succeeded. In practice, if a case involved class members with different levels of damages caused by the same or similar event, the entire requirement was circumvented. Lawyers representing class members advised them to limit the claim to declaratory relief only. After the amendment, standardization is still required, but there is no need to justify it when bringing forth the claim. However, each group member must expressly agree to the standardized amount of their claim. When bringing monetary claims, each class member must specify the amount of their claim.

Until 2017 (when the regulations were amended), the premise of standardization was understood very restrictively - the claims of individual group members were to be standardized, taking common circumstances into account. For this reason, conducting one of the first group proceedings on behalf of a group of flood victims from Sandomierz, we decided to change the claim - by limiting claims for payment to establishing liability (we made the change in the first phase - before the final certification). Therefore, the group proceedings concluded in 2020 resulted in determining the liability of the defendants: the State Treasury and the Świętokrzyskie Voivodeship towards the injured flood victims for the tort of public authority - improper performance of duties in the field of flood protection.

The end of the group proceedings was an incentive for the injured parties (more precisely their lawyers) to invite the defendants to settlement talks regarding individual compensation. The defendants started talks only after refusing to accept the cassation complaints filed against the final decision issued in the group proceedings. The settlement talks that started in mid-2022 were - just like the case itself - precedent-setting. (landmarked). The public administration has established a negotiation team consisting of representatives of the State Treasury, representatives of its specialized units (National Water Management Authority Polish Waters - Państwowe Gospodarstwo Wodne Wody Polskie), ministers supervising their activities and representatives of local government units at the voivodeship level. This was the first case in which such a broad team was authorized to conduct negotiations. In Poland, concluding agreements with public entities was basically impossible a few years ago, but in recent years, many positive changes have taken place.

Group proceedings to determine liability effectively opened the way to settlement negotiations, thanks to which the injured parties - former group members - did not have to file individual cases for payment in order to receive compensation.

Individual cases for the payment of compensation - although they would concern only the amount of compensation due resulting from a tort determined in group proceedings - would require the court to conduct evidentiary proceedings regarding the facts related to the damage and its amount, probably including evidence from an expert opinion. Unfortunately, the need to use an expert opinion significantly prolongs court proceedings in Poland.

So far, the settlement talks we conducted have led to the signing of three groups of settlements. The first settlements were concluded at the end of October 2022, the next ones in February 2023, and one more in July 2023, and that's not the end - as regards the last group of claims - negotiations are still ongoing - to protect the interests of the injured parties, a mediation agreement was concluded.

In the group proceedings, the courts determined that the defendants, State Treasury and Swietokrzyskie Voivodeship, were liable for damages for the improper exercise of public authority in the area of flood protection duties, which led to the breach of the right-bank embankment of the Vistula River in Sandomierz in the Koćmierzów district in May 2010 and the subsequent flooding of the right-bank area of Sandomierz and the surrounding area with flood waters. It was assumed that the defendants were guilty of a number of negligent acts regarding the maintenance of the capacity of the Vistula river embankment in the Sandomierz area by omitting to cut down trees and bushes on an ongoing basis, as well as with regard to ensuring the correct height of the flood protection embankment.

The action by a group of flood victims from Sandomierz was one of the first class actions in Poland. It was filed on 1 September 2010, just over a month after the Act came into force.

For further information on this topic please contact Agnieszka Trzaska-Śmieszek at Kubas Kos Gałkowski by telephone (+48 12 619 40 40) or email ([email protected]). The Kubas Kos Gałkowski website can be accessed at www.kkg.pl.