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Litigation

Procedure

What is the procedure for filing a product liability claim before the courts in your jurisdiction?

Product liability claims are initiated by the claimant serving a writ of summons on the defendant. Service of a writ must be performed by a court bailiff. The lawsuit commences on the day that the writ is served on the defendant. The claimant must register the writ with the competent court on the date stated on the writ. Claims must be brought in the first instance before the competent district court, unless the parties have agreed on a different form of dispute resolution. If the amount claimed is €25,000 or less, a special district court division (the cantonal division) will handle the case (Article 93 of the Code of Civil Procedure). Both parties must pay a court registry fee.

The digitalisation project of the Dutch legal system entails key deviations to this process. New procedural rules apply in the digital system (see website of the judiciary). This is being phased in from February 2018. At the time of writing (March 2018), the digital system is implemented only in the District Court of Midden-Nederland and the District Court of Gelderland. Other district courts in the Netherlands are expected to implement the digital system by the end of 2018 or early 2019.

Interlocutory motions

Can the court issue interlocutory orders or judgments in product liability cases? If so, what rules and procedures apply?

The court often issues interlocutory judgments in product liability cases. Such judgments concern (for example) orders for the parties to submit certain evidence.

Generally, an appeal against an interlocutory judgment can be lodged only simultaneously with the final judgment, unless the court has specifically allowed an interim appeal (Article 337 of the Code of Civil Procedure).

Pre-trial disclosure

What pre-trial disclosure/discovery mechanisms are available in product liability cases, if any?

Dutch law does not include the concept of pre-trial disclosure and there is no general disclosure obligation. However, pre-trial disclosure can be obtained by way of the following:

  • Disclosure of documents by another (third) party – based on Article 843a of the Code of Civil Procedure.
  • Evidentiary seizure – an Article 843a claim may be secured by seizing the evidence. Permission must be requested by submitting a petition to the court; in order for this to be permitted, a well-founded fear of embezzlement must be shown.
  • Preliminary witness hearing – parties may request the court to order that witnesses are heard before the proceedings (Article 186 of the Code of Civil Procedure); such requests are rarely denied.
  • Preliminary expert report – parties may request a preliminary expert's report by filing a petition before the proceedings (Article 202 of the Code of Civil Procedure).

The main goal of these forms of pre-trial disclosure is to gather evidence and evaluate the chance of success in potential proceedings against a prospective defendant. The claimant need not file subsequent proceedings.

Evidence standards

What evidence is accepted to support claims in product liability cases? What formalities apply to evidence submission?

Article 152 of the Code of Civil Procedure states that evidence may be presented in any form, unless the law provides otherwise. Evidence can therefore be filed in essentially every form (eg, paper, oral testimony, samples and voice recording). In practice, the most common forms of evidence include:

  • documents (typically electronic);
  • witnesses (including witness hearings before the court and written witness declarations); and
  • experts (in the form of expert's reports).

Expert evidence

Under what circumstances will the court appoint an expert to assist it in examining the merits of the case? What rules and procedures apply?

The court can appoint an expert if (for example) the court needs expert advice on certain aspects of the case (Article 194 of the Code of Civil Procedure). The court decides who shall be appointed, but the parties are allowed to discuss the selection and can comment on the expert's draft report. While the court is not bound by the expert's report and the report has no specific value as evidence, in practice, the courts tend to rely on the report.

Can the parties rely on expert witness testimony to support their claims? If so, what rules and procedures apply?

Parties can rely on expert witness testimonies to support their claims. Such experts are known as 'party experts'. Parties can either submit a party expert report or request the court to hear the party expert during the proceedings (Article 200 of the Code of Civil Procedure).

Class actions

Are class actions or any other collective proceedings available for product liability claims in your jurisdiction? If so, what is the procedure for their formation and what benefits do they afford claimants? Are class actions formed on an opt-in or an opt-out basis?

Mass tort litigation does not fall within the category of collective action or the Collective Settlements Act. It relates to a recent trend in cases involving claim vehicles whereby (sometimes hundreds of) injured parties have been asked to assign their claim to the claim vehicles. Subsequently, the claim vehicles start proceedings in the Netherlands against defendants acting in their own names. This is often referred to as the Dutch 'assignment model'.

In addition to this so-called ‘assignment model’, Dutch law provides for two formal litigation mechanisms to settle collective mass damage claims: the Collective Settlements Act and collective action based on Article 3:305a of the Civil Code.

The Collective Settlements Act enables the collective settlement of mass damages claims. Under the act, the collective settlement must be concluded between:

  • one or more associations or foundations representing the interests of a group of injured parties which suffered alleged damage; and
  • the party or parties allegedly caused the damage.

Once a settlement is reached, the parties can submit a joint application to the Amsterdam Court of Appeal, requesting it to declare the collective settlement binding on all injured parties falling within the scope of the settlement agreement (whether known or unknown and whether residing in the Netherlands or abroad). Those injured parties that do not want to be bound by the settlement agreement have a limited period to opt out.

Article 3:305a of the Civil Code stipulates that a collective action can be instituted by a foundation or association whose statutory goal is to represent the interests of groups of injured parties having similar damage claims and having a similar interest in holding a third party liable for the damage suffered by such group of injured parties. The initiating foundation or association must also have full legal capacity and have made a sufficient attempt to achieve the objective of the collective action through consultations.

The collective action can be used only to seek a declaratory judgment against the third party. Thus, current Dutch law does not provide for a collective damages action.

In November 2016 the minister of security and justice submitted a legislative proposal to Parliament, which aims to amend the collective action based on Article 3:305a of the Civil Code. If adopted without any major amendments, it would transform the Dutch law approach to collective redress. IT would, among other things, open up the possibility to claim damages in a collective action.

Appeals

What rules and procedures govern appeals of court decisions?

The losing party may appeal against an adverse district court judgment to a court of appeal in the jurisdiction in which the district court is located.

An appeal against a first-instance judgment in proceedings on the merits should be lodged within three months after the date of the judgment (Article 339 of the Code of Civil Procedure).

Statute of limitations

What is the statute of limitations for filing product liability claims?

Article 6:191 of the Civil Code states that a product liability claim lapses three years following the day on which the injured party became aware or should reasonably have become aware of the damages, the defect and the producer’s identity.

In many cases, a product liability claim can also be based on an unlawful act. The cause of action for damages on the basis of an unlawful act cannot be brought after a lapse of five years after the commencement of the day following the day on which the injured party became aware of both the damage and the person or legal entity liable. In any event, an action cannot be brought after a lapse of 20 years following the event that caused the damage.

Timeframe

What is the typical duration of proceedings in product liability cases?

The duration of proceedings in product liability cases depends on:

  • the scale and complexity of the case;
  • whether experts and witnesses must be heard; and
  • if interim motions are filed.

First-instance proceedings can take up to several years. Appeal proceedings typically take at least 12 months, but can be longer. Proceedings before the Supreme Court take approximately 15 months.

Costs, fees and funding

Can the successful party to the litigation recover court and attorneys’ fees and any other related expenses from the losing party? If so, what rules and procedures apply?

The unsuccessful party is usually ordered to pay the legal costs (eg, court fees, fees of any court-appointed experts and lawyers’ fees) of the successful party (Article 237 of the Code of Civil Procedure).

Lawyers’ fees are fixed by the court according to a scheme, which is based on the value of the case (ie, the amount claimed). The costs, as fixed by the court, are usually much lower than the actual costs. The successful party has no action to claim the remaining part of its lawyers’ fees. The court fees and the expert fees to be paid are the actual costs incurred.

What rules and restrictions (if any) govern contingency fee arrangements?

Under the Netherlands Bar Association Code of Conduct, contingency fees are prohibited for lawyers in the Netherlands. However, in 2014 a five-year temporary exception was introduced as a pilot for personal injury cases and cases in which damages resulting from death are claimed. In those cases, contingency fees are allowed if certain strict requirements are met. This prohibition does not apply to claim vehicles to which injured parties have assigned their claim on the basis of a deferred purchase price (ie, the injured parties assign their claims and will pay the claim vehicle a certain percentage of the successful outcome of the case), whereby the claim vehicle subsequently starts proceedings in the Netherlands against defendants acting in their own names.

Is third-party litigation funding permitted in your jurisdiction? If so, do any rules or restrictions apply?

Third-party litigation funding is not regulated in the Netherlands and is becoming increasingly widespread.

A foundation or association initiating a collective actions claim based on Article 3:305a of the Civil Code has no standing if the court deems that the interests of the prejudiced persons are insufficiently safeguarded. Moreover, a legislative proposal, which aims to amend the collective action based on Article 3:305a, contains a provision which provides that the foundation or association must have sufficient funds to bear the costs associated with the submission of the claim, giving the court more scope to examine the financing arrangement and ensure that the prejudiced persons' interests are sufficiently safeguarded.

Is legal aid (ie, public funding) available to claimants in product liability cases? If so, what rules, restrictions and procedures apply?

Under the Act on Legal Aid, single householders with an annual income of less than approximately €26,900 and people who run a joint household with one or more persons with an annual income not more than €38,000 have a right to legal aid paid by the state if certain criteria are met (Article 12 in conjunction with Article 34 of the Act on Legal Aid).

Those criteria include that the legal interests must concern the Netherlands and the costs of the legal aid must be in reasonable proportion to the interests of the case. Legal aid recipients must pay an income-related fee – for 2018 the lowest fee is €196 and the highest is €823. Generally, no fees are payable in criminal cases. 

Further, the individual must pay the court fees and, if he or she loses the case, the other party’s costs, as ordered by the court.

Settlement

What rules and procedures govern the settlement of product liability cases?

The Collective Settlements Act sets out some specific rules and procedures for collective settlements.

Should parties wish to enter into a settlement outside the Collective Settlements Act framework, no specific rules and procedures apply. A settlement agreement may be reached by the parties either before or during the proceedings, either amicably or by an alternative dispute resolution (ADR) procedure.

How common are settlements in product liability cases?

This depends on the circumstances of the case and the parties' willingness to reach a settlement. Generally, settlements in product liability cases are common.

Alternative dispute resolution

Are any alternative dispute resolution (ADR) methods required or advised before or in lieu of proceeding with litigation?

Under Dutch law the ADR methods available are arbitration, binding advice and mediation.

Arbitration can be agreed in advance or when the dispute arises. Arbitration leads to a judgment that will be enforceable. 

Parties can also request a third party to give binding advice on the dispute. In the Netherlands, the third party will usually be a disputes committee, such as the consumer conciliation board. 

Finally, parties can choose mediation, whereby the parties will be supported in their negotiations by an independent third party until a mutually acceptable solution is found.

How commonly is ADR used in relation to product liability cases in your jurisdiction?

This highly depends on the type of case and the wishes of the parties involved. Mediation and binding advice are likely the most common methods of ADR for product liability cases.

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