Dr Maciej Kiełbowski

Who can sign the statement of claim in a class action suit?

Only an adwokat or legal adviser may sign the statement of claim in a class action suit, the Supreme Court of Poland has held in a resolution clarifying the Class Actions Act. A statement of claims signed by anyone else will be rejected by the court.

Supreme Court resolution of 13 July 2011, Case No. III CZP 28/11, published at OSNC No. 1/2012 item 9

The Supreme Court took up the issue of who is entitled to sign the statement of claim in a class action pursuant to a certified question presented by the Kraków Court of Appeal under Art. 4(4) of the Class Actions Act, which requires the plaintiffs in a class action to be represented by counsel—an adwokat or legal adviser—unless the lead plaintiff personally is an adwokat or legal adviser. The requirement to be represented by counsel applies to the entire proceeding, including the statement of claim.

What about the consumer advocate?

In the case before the Kraków Court of Appeal, the statement of claim was filed by the county consumer advocate, acting as the class representative under Art. 4(2) of the act.

The presiding judge of the court of first instance issued an order rejecting the statement of claim because it was not signed by an adwokat or legal adviser, and thus was subject to rejection without a summons to supplement the statement of claim (applying by analogy Art. 130 §5 of the Civil Procedure Code, which provides for such sanction in the case of pleadings submitted to the Supreme Court of Poland, where representation by counsel is also mandatory).

Questions raised

The consumer advocate filed an interlocutory appeal against the order. The court of appeal filed a certified question with the Supreme Court in order to clarify two issues before ruling on the appeal:

First, does the requirement that the class be represented by counsel apply when the class representative is the county (or municipal) consumer advocate, and the class action involves consumer protection claims?

Second, may the legal defect of filing a statement of claim by a person who is not an adwokat or legal adviser be cured by supplementing the pleading pursuant to Civil Procedure Code Art. 130 §1? Under this section, if a party files a pleading with formal defects, the party is summoned to supplement the pleading to cure the defect within 7 days. The pleading is only rejected if the party fails to cure the defect within 7 days. If the party meets the deadline for curing the defect, the pleading is deemed to be effective as of the original filing date (which may be material, for example, for determining whether the plaintiff has met the statute of limitations).

Supreme Court response

In adopting its resolution, the Supreme Court explained the role of the consumer advocate as a class representative filing a statement of claim, finding that the wording of Art. 4(4) is unambiguous and there is no reason to depart from a literal interpretation.

The court also found that there is no justification for treating the legal status of the consumer advocate differently from that of other class representatives. Just as is the case when a member of the class is the class representative, the consumer advocate is a plaintiff for purposes of the Class Actions Act, and a plaintiff in a class action must be represented by counsel.

The court also explained the function of professional representation of plaintiffs in a class action: “In this situation, mandatory representation of the plaintiffs by an adwokat or legal adviser is a fundamental guarantee of protection of the litigation interests of the members of the class. As indicated in the literature, the use of the institution of mandatory representation by an adwokat or legal adviser also reduces the risk of assertion of clearly groundless claims, which is particularly important in class actions.”

The court thus held that the plaintiffs in a class action must be represented by counsel even if the county or municipal consumer advocate is the class representative, and that a statement of claim in a class action not signed by counsel must be rejected without summoning the party to cure such defect. The ruling by the Supreme Court should resolve this issue once and for all.

Maciej Kiełbowski, Dispute Resolution & Arbitration Practice, Wardyński & Partners