Postępowanie grupowe – model opt-in, czy opt-out?
Class action is analyzed in the article.
The Polish legislator, with a view to speeding up civil proceedings, introduced by the Act of 17 December 2009, on pursuing claims in group proceedings, the possibility of hearing cases for many plaintiffs in one proceeding. The act introduces the conditions for the admissibility of group proceedings, stating that it is a civil proceeding in which a group of at least 10 people pursues claims of one type based on the same factual basis.
The author explains that the application of the act on group proceedings has also been limited to pursuing claims for liability for damage caused by a dangerous product, for tort, for liability for non-performance or improper performance of a contractual obligation or for unjust enrichment, and in relation to claims for consumer protection also in other matters. In addition, the pursuit of claims for the protection of personal rights is excluded, with the exception of claims arising from bodily injury or causing health disorder, including claims due to the closest family members of the victim, who died as a result of bodily injury or causing health disorder.
It is emphasized that there are also restrictions on the possibility of using group proceedings in the event of pursuing pecuniary claims resulting from bodily injury or causing health disorder, including pecuniary claims due to the closest family members of the victim, who died as a result of bodily injury or caused health disorder.
The author analyzes the models of class action in detail. It is stressed in the article that the choice of a more favorable model is difficult and depends on the adopted criterion. If the scale criterion is adopted, the benefits in the opt-in model will be smaller than in the opt-out model because the group will rarely include all entities entitled to a given type of claim. Also, when assessing both models from the point of view of encouraging the parties to settle the dispute amicably, in opt-out class proceedings the defendant has a strong incentive to reach a settlement. It saves him the costs of further court proceedings and the risk of potential losers. Although this means (at least partially) accepting the responsibility for the damage by the defendant, it is so with his participation and in the course of negotiations. At the same time, it gives him a guarantee that he is no longer threatened by certain types of claims.
However, the defendant does not guarantee the definitive conclusion of the case by the opt-in procedure, because the groups do not include all persons who are entitled to a claim. This means that the system based on the opt-in mechanism provides weaker incentives for the defendant to settle disputes amicably than under the opt-out model.
On the other hand, the previously raised possibility of abuse and «forcing» the respondent to conclude settlements speaks against basing the group proceedings on the opt-out model. The costs of group proceedings and the burdening of the courts with these proceedings in the event of adopting the opt-in and opt-out model are also important for the selection of the appropriate model. Proceedings based on the opt-out model are much less burdensome for the courts, as many procedures are not necessary and are therefore cheaper.
The author concludes that basing group proceedings on one or the other model remains the choice of the legislator of the state in which these regulations will apply. Each of the opt-in and opt-out models has advantages and disadvantages, hence some countries decide to base group proceedings on both models, depending on the subject of the group trial, while other group proceedings base on the opt-in model or opt-out model.