CZECH REPUBLIC Law and Practice Contributed by: Robert Němec, Michal Sylla, Viktor Glatz and Adéla Šmahelová, PRK Partners
The percentage or amount of the claimant’s proposed remuneration will be determined by the court in the decision on admissibility of the collective action. The court is allowed to adjust the remuneration if needed. 3.10 Disclosure and Privilege Generally, with certain limited exceptions, Czech law does not recognise or apply the concept of discov- ery or compulsory disclosure in civil proceedings as it is against the general principle that no one can be “forced” to incriminate themselves. The Code of Civil Procedure sets out an exception to the general rule in situations where the claimant is not in possession of evidence supporting their claim but they are able to specifically identify such evidence and demonstrate that such evidence is under the defend- ant’s control. Upon the claimant’s justified request, the court may order the defendant to disclose such evidence. If the defendant refuses to do so or fails to prove to the court that such evidence is in fact not in the defendant’s possession, the contested facts shall be assessed to the defendant’s detriment – ie, the facts alleged by the claimant will thereby be consid- ered proven for the purposes of the proceedings. This can, of course, also work the other way around, with defendants seeking that the claimants be ordered to disclose evidence, though such cases are less com- mon. The Collective Proceedings Act essentially follows the procedure already recognised by the Code of Civil Procedure and limits the disclosure of evidence to the duty to submit specific evidence (documents or items), which must be precisely specified by the party making the request. It should therefore not be possible for the court to order the defendant (or anyone else) to disclose a broader range of evidence that is only specified on a general basis. If the party who has been ordered to disclose particular evidence fails to do so without a justifiable reason, the disputed facts alleged by the other party will be deemed proven. Fines of up to CZK5,000,000 (EUR200,000) may be imposed by the court for an unjustified breach of the duty to disclose evidence.
The duty to disclose evidence shall not apply if the disclosure is incompatible with a statutory obligation
of confidentiality. 3.11 Remedies
As mentioned in 3.1 Mechanisms for Bringing Col- lective Redress/Class Actions , claimants may seek both injunctive and redress measures under the cur- rent legislation governing collective and representa- tive action proceedings. Remedies available under the Collective Proceedings Act include claims seeking payment as well as for the fulfilment of any other obligation that may be ordered by a court and enforced or the declaration of the exist- ence of a legal relationship or right. The Collective Proceedings Act also provides for the possibility to apply for interim injunctive measures. Remedies available in proceedings for the protection of the collective interests of consumers include pro- visional or definitive injunctive measures to cease a practice or to establish that the practice constitutes an infringement of a legal obligation. 3.12 Settlement and ADR Mechanisms As a general principle of Czech civil proceedings, eve- ry judge should, at least formally, attempt to assist and encourage the parties to reach a settlement. Where the judges see fit, they may even order the parties to attend a mediation session. These general rules also apply to collective proceedings. According to the Code of Civil Procedure, any dispute may be resolved by an out-of-court settlement result- ing in a withdrawal of the claim by the claimant and the acceptance thereof by the defendant, without the option of the court to intervene in any way. Similarly, the Collective Proceedings Act allows for an amicable resolution in the form of a settlement agree- ment, although this option is limited in order to protect the registered group members’ interests. Any settle- ment reached after the initiation of collective action proceedings needs to be approved by the court. The court will also not admit the withdrawal of the collec- tive action if the withdrawal is unfair with respect to the registered group members’ interests.
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