NETHERLANDS Law and Practice Contributed by: Eva Schothorst-Gransier, Claims Made Advocatuur
2.13 The Impact of Regulatory Compliance on Product Liability Claims According to Article 6:186 of the DCC, a product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, particularly in terms of: • its presentation; • the use that could reasonably be expected to be made of the product; and • the time when the product was put on the market. These circumstances are not exhaustive. Non- compliance with product safety requirements will be considered when assessing a defect. Conversely, full compliance with safety require - ments does not guarantee that a product is with - out defects. Under the new PLD, the product’s defective - ness shall be presumed in case the claimant demonstrates that the product does not com - ply with mandatory product safety requirements laid down in Union or national law, which are intended to protect against the risk of the dam - age suffered by the injured person. 2.14 Rules for Payment of Costs in Product Liability Claims Court Fees In the event of litigation, court fees are due by both parties. A fixed schedule applies, and the amount depends on the quantum of the claim. The minimum amount for companies is EUR714, and the maximum is EUR10,188. Recoverable Costs These include fixed court fees, expert fees, costs for hearing witnesses, bailiff fees and dis - bursements, and fixed expenses for having the
judgment executed, which are recoverable costs for the successful party. Attorneys’ fees will only be compensated according to a fixed liquidation schedule. In reality, these fees are much lower than the actual attorneys’ fees incurred. “Deelgeschil” A product defect can cause personal injury. In personal injury cases, one could start a deel- geschil , in which the court is asked to rule a judgment on a particular case issue, such as liability, causation or quantum. A condition for the admissibility of a deelgeschil is that the judg - ment assists parties in reaching an out-of-court settlement. Contrary to normal litigation, in a deelgeschil , the liable party will be ordered to pay the actual attorneys’ fees for the personal injury claimant. 2.15 Available Funding in Product According to the Rules of Professional Conduct for lawyers ( de Gedragsregels voor advocaten ), lawyers are prohibited from making “no cure, no pay” arrangements. An exception is made for personal injury claims (based on a pilot, which is extended until 1 January 2026), but this is strictly regulated. Certain conditions need to be met, and the Dean of the Bar where the lawyer prac - tices needs to be notified. Fixed or capped fees are permitted. Third-party Funding Liability Claims No Cure, No Pay Third-party funding for court litigation is allowed. No statutory legislation specifically regulates third-party funding in the Netherlands. The Euro - pean Collective Redress Directive 2020/1828 includes provisions regulating third-party liti - gation funding for collective actions on behalf of consumers. These are incorporated in the WAMCA (see 2.16 Existence of Class Actions,
189 CHAMBERS.COM
Powered by FlippingBook