NETHERLANDS Law and Practice Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
3.10 Disclosure and Privilege Dutch procedural law does not provide for a (pre-)trial discovery or disclosure process as in the USA or the UK. However, pursuant to Section 21 of the DCCP, the parties are obliged to fully and truthfully advance facts that are relevant to the court’s decision. Furthermore, pursuant to Section 22 of the DCCP, the court may, in all cases and at any stage of the proceedings, order the parties or one of them, to substantiate their statements. It seems that, particularly in collective redress cases, courts are increasingly using this power, as in the Renault and Mercedes “dieselgate” collective actions Pursuant to Sections 194 and 195 of the DCCP, a per- son who has a legitimate interest in doing so may, at their own expense, demand disclosure, either outside or in legal proceedings, of certain information relating to a legal relationship to which they or their legal pre- decessors are a party from the person who has such information at their disposal or in their custody. The person from whom information is demanded is not obliged to comply with the request if it can reasonably be assumed that a proper administration of justice is also guaranteed without providing the requested information. However, in cartel damages actions this exception does not apply, pursuant to Section 845 of the DCCP. Both Section 22 as well as Sections 194 and 195 of the DCCP provide that a party may refuse disclosure if there are compelling reasons to do so. Legal privilege can be such a reason, but confidentiality and privacy are also invoked by parties resisting disclosure. If a party refuses disclosure without there being a com- pelling reason for doing so, the court may draw the adverse inferences it deems appropriate. Finally, the Cartel Damages Directive (Directive 2014/104/ EU) has also been implemented through the DCCP. Therefore, the DCCP contains sections that protect cer- tain categories of information from disclosure. For exam- ple, pursuant to Section 846 of the DCCP, a party cannot be required to disclose leniency applications and set- tlement statements. Furthermore, pursuant to Section 847 of the DCCP, certain other information (relating to a competition authority’s investigation) cannot be used as evidence in civil proceedings until after the competition authority has completed its investigation.
the compensation awarded. Instead, what percentage will ultimately be deemed acceptable will depend on the amount of such compensation and the number of injured parties that are expected to claim payment thereof. Furthermore, the court held that given the risks they take, it is justifiable that litigation funders receive an appropriate reward, but that this reward should be reasonably proportionate to the amounts invested by them and shall therefore not exceed five times that amount. In other cases, courts have been less explicit but have also reserved their final judg- ment on the appropriate success fee percentage until the outcome of the case is known. The Amsterdam District Court held in Trucks that such requirements do not apply to SPVs in proceedings on the basis of the assignment model or mandates/pow- ers of attorney. District courts and courts of appeal have also accepted success fees for litigation funders in the range of 25–35% in such cases. Costs Under Dutch procedural law, the principle that “the loser pays” applies to costs, albeit that the amount the loser has to pay is usually severely capped in terms of the court and legal fees. Adverse costs awards are in principle calculated on the basis of the number of procedural acts and a fixed amount per procedural act that depends on the amount of the claim, and they are unlikely to exceed tens of thousands of euros. A particular feature of the WAMCA is, however, that if the collective action is prima facie unfounded, the district court may increase the defendant’s (standard- ised) legal fees by a maximum of 500% at the expense of the interest organisation that brought the collec- tive action, unless reasonableness and fairness dic- tate otherwise. Furthermore, if the district court has to establish a collective compensation scheme in the final stage of a collective action, it may, upon request, deviate from the statutory cap on costs, and order the defendant to pay reasonable and proportionate legal costs and other costs incurred by the interest organisation, unless reasonableness and fairness dic- tate otherwise. This is another example of an incentive the WAMCA provides to settle mass damages.
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