A Gloss to the Judgment of the Supreme Court of 17 September 2020 (I CSK 628/18)

Abstract

The judgment of the Supreme Court of 17 September 2020 (I CSK 628/18) refers to the infringement of personal interests and so-called outsourcing, which is increasingly being applied by insurers during winding-up proceedings and subsequently in the course of activities aimed at determining whether the circumstances justifying the payment of a cash benefit have not changed. In the contentious factual circumstances, which became the basis for the Supreme Court’s deliberations, a detective agency, having concluded a contract of mandate with the insurer, performed verification procedures to confirm the legitimacy and the amount of the compensation annuity received by the victim of a traffic accident. However, the investigation was conducted in an inappropriate way, using psychological coercion, copying medical records, test results and medicines – including recording and taking pictures of the victim, having conversations with neighbours about his daily routine, and finally obtaining the victim’s blank signature on a sheet of paper where detectives later added his consent to conduct verification and an unlawful receipt of a declaration of liability for giving false statements. Their conduct led to an infringement of personal interests, including the right to privacy and the right to security. The courts of different instances interpreted the facts differently and adopted various legal interpretations: from the acceptance of the insurer's liability for infringement of the victim’s personal interests by the outsourced detective company (district court), through ruling on the lack of liability and, above all, the lack of insurer’s capacity to initiate proceedings (court of appeal), to the confirmation of liability under certain conditions. The author of this generally positive gloss presents and evaluates arguments cited by the Supreme Court. She also organizes and verifies disputable issues. In addition to identifying a variety of legal problems and doubts in this respect, she emphasizes the practical importance of this judgment and the question of the insurer's liability for activities or omissions by third parties providing outsourced services.