Courts get closer to plaintiffs
A ‘competent court’ now also includes the court at the place where the adverse effects of a tortious act occur. This approach will help victims seeking to recover damages.
Supreme Court of Poland resolutions of 15 December 2017 (Cases III CZP 91/17 and III CZP 82/17)
In civil litigation, the general guideline calls for claims to be brought before the district court where the defendant resides or has his main place of business. However, in the case of tortious acts such as copycat packaging, false advertising or theft of trade secrets, a claim may be filed in the location where the harmful act occurred. This is the alternative jurisdiction principle regulated by Art. 35 of the Civil Procedure Code. However, the Supreme Court has recently found that a literal interpretation of Art. 35 does not adequately protect the interests of tort victims and ruled that the court located at the place of the adverse effects of the tortious act may also be the chosen as the ‘competent court.’
A groundless execution proceeding infringing on personal rights and a knowing dissemination of false information
The Supreme Court’s first resolution (Case III CZP 91/17) was issued based on the following factual situation. The case involved a woman who was the victim of a groundless execution proceeding instituted by her energy supplier – despite having paid all of the company’s invoices. As a result, the plaintiff’s wages were garnished, her banking account became attached and she was added to the Credit Information Bureau’s (BIK) debtors list – making her unable to obtain a loan. The customer decided to file a claim against the energy supplier for compensatory damages, recovery of sums wrongly paid and the issuance of a public statement to remedy the effects of the personal rights’ violation. The energy company’s main place of business was located in a different court district then the plaintiff’s place of residence. Plaintiff decided to file her claim in the competent court based on her place of residence.
The second Supreme Court resolution (Case III CZP 82/17) involved a tort of unfair competition. The plaintiff claimed that respondent published a falsified copy of an article describing the results of a study on the efficacy of a product distributed by the plaintiff. The fraudulently modified article was published on the respondent’s website and Facebook page and distributed in the veterinary community. The respondent edited the article, substituting the name of product distributed by the plaintiff with that of a competing product distributed by the respondent. As a result, the respondent benefited by associating the positive assessment of the plaintiff’s product with the competing product which she was distributing. Plaintiff demanded that respondent publish a clarification statement, desist from the tortious activity and pay damages. The plaintiff filed the suit before a court in the district where she found the fraudulent brochure (i.e. where it must have been distributed by the respondent).
In both cases, the courts of first instance found that they lacked jurisdiction over the matters and transferred the cases to the courts in the districts where respondents had their place of business. Faced with complaints in both cases, the courts of the second instance referred the matters to the Supreme Court, seeking an interpretation of territorial jurisdiction on the basis of Art. 35 of the Civil Procedure Code.
Bringing claims where the damages occurred
In the first case, the Supreme Court found that “based on Art. 35 of the Civil Procedure Code, a person claiming protection of personal rights may file their claim before the court in the district in which the tortfeasor acted or before the court in the district where the tortious act resulted in a threat or harm to personal rights.” In adopting such an interpretation, the Supreme Court relied on a purposive construction of the law and indicated that the assumption that the location of the tortious act can solely be the location where the tortfeasor acted (most frequently at their place of business or activity) would result in the adoption of general jurisdiction based upon Art. 31 of the Civil Procedure Code and would de facto deprive Art. 35 of any significance. The Supreme Court also noted that the addition of the alternative jurisdiction principle into the Code was intended to protect the interests of plaintiffs. This is why, in determining the place of the act, courts should also consider the location where the final element of the complicated fact pattern took place: the resulting infringement of personal rights. In most instances, this location is where the plaintiff lives and conducts his business, which aids the plaintiff in illustrating the scope of the infringements and their consequences.
In the second resolution the Supreme Court noted that tortious acts include multi-location torts where the events giving rise to damages and their effects take place in several locations. The application of the principle of fori delicti comissi (court of the place where the tort was committed) is intended to identify the court where evidence is most readily available and which is closest to the subject of the dispute. According to the Supreme Court, these circumstances may also indicate that the court in the place where the damages were suffered is best suited to hear the case.
In the same ruling, the court also used a systemic interpretation and noted that the connection between the location of the event giving rise to the damages is similar to the connecting factor provided for torts by Art. 7(2) of the Regulation of the European Parliament and of the Council, No. 1215/2012 of 12 December 2012 on jurisdiction and the enforcement of judgments in civil and commercial matters (Brussels I bis). In light of the Court of Justice of the European Union (CJEU) judgments, the term “courts for the ‘place where the harmful event occurred or may occur’ includes both the courts at the place where the damages materialized (i.e. the harmful results of the causal event which negatively affected the victim) as well as the court for the place where the event which gave rise to the harm occurred.” The Supreme Court has ruled that Art. 35 of the Civil Procedure Code shall be interpreted in the spirit of the interpretations of Art. 7(2) of regulation 1215/2012.
In addressing the underlying facts, the court panel found that in unfair competition torts the reference point for determining the location of the harmful effects shall be the place where the plaintiff has his place of business or the place toward which his economic activity is directed and where the defendant’s unfair business practices occur. “In a situation where the the acts of unfair competition consist of online publications, it is reasonable to assume that the place where the harmful effects of the acts take place does not include every location where the website could be accessed, but rather such locations where the accessibility of the website results in a risk or actual infringement of the plaintiff’s interests. Such places includes the place where the plaintiff conducts his business or the place toward which he directs his activities and where the accessibility of the website containing the publication results in the defendant’s unfair interference in the market.”
In the court’s opinion by benefiting from the use of the internet in his business activities, the defendant must also assume the risks related to that medium.
Assisting the victims
The Supreme Court’s resolutions affecting the venue for filing tort claims by plaintiffs is highly significant for both natural persons and businesses. There is no reason why the party responsible for harms caused by their tortious act should benefit from the principle of filing claims in the court in their place of residence or business. The party responsible for the harm must be prepared to defend itself from claims by the harmed party in the place where the tortious act occurred. These resolutions will assist plaintiffs in pursuing their claims by providing a choice in selecting a convenient court venue. The resolutions also clarify questions regarding the court competent to adjudicate tortious acts of unfair competition committed online.
Joanna Woźniak, adwokat, Agnieszka Pachla, Intellectual Property practice, Wardyński & Partners
