Archive for the ‘dutch personal injury lawyer’ Tag

Discovery in the Netherlands

Discovery  in the Netherlands. Disclosure of documents in civil claims.

If a party needs documents from another party in the Netherlands article 843a Code of Civil Procedure Rules (DCPR) (right to inspection) might be a tool to gain access to these documents.

In short article 843a DCPR enables a party to gain insight in documents that are not at his disposal. For a claim under this article it is necessary that requirements mentioned in article 843a are met. The elements are as follows:

  • The claim has to regard existing documents
  • The documents must be at the disposal of, or in possession of, defendant
  • The documents must be sufficiently determined
  • The documents must bear relevance to a legal relationship in which plaintiff is a party
  • The plaintiff must have a legitimate interest in the inspection, a copy or extract (hereinafter jointly: copy) of the documents
  • Rejection of the claim only for serious reasons and
  • Rejection of the claim if in the interest of a proper administration of justice is also guaranteed without a copy.

If you need further information please contact Legaltree

New Dutch International Private Law (general principles)

If a client in a cross border case decides to issue proceedings in the Netherlands it is important to know which private international rules a Dutch court will apply. After all these rules determine which country’s law should apply.

The new Book 10 of the Dutch Civil Code  includes a number of general principles (Articles 1-5), and articles that can correct the initial referral result (Articles 6-9). Articles 10-14 contain a number of important legal concepts such as choice of law and form of legal acts. Finally, there are some provisions relating to the nationality of a person and the personal status of a refugee (Articles 15-17).

All these rules are common rules which Dutch courts already applied but which are now codified.

Article 1: Priority of regulations of international and community law
For example, in article 1 priority of regulations of international and community law over national rules is included. Although this seems unnecessary, the minister of Justice was of the opinion that it was desirable to codify this principle. It would be useful for lawyers and would provide clarification. Furthermore it is also included in many foreign codifications of private international law.

Article 2: Application ex officio
Article 2 provides that rules of private international law and the law designated by rules should automatically apply. The court may, and thus need not wait until one of the parties invokes applicability of foreign law.
In case a judge considers application of another law, while parties have not indicated possible application of this law during court proceedings, he is obliged to give parties the opportunity to comment thereon.
Article 3: Procedural rules
As indicated Book 10 contains no rules of a procedural nature. Article 3 only provides that Dutch law shall apply to the rules of procedure of legal proceedings before Dutch courts.
Article 5: No renvoi
Renvoi is, briefly stated, the practice in which private international law of the forum that was chosen according to the international private law rules of the other country also applies. This could lead to the result that according to the private international law of the chosen forum the law of another country applies. Under Dutch law there is no place for renvoi.
Article 5 therefore states that the application of the law of a State means the application of the rules of law in that State, with the exception of its private international law.

Article 8: General exception
In article 8 a general exception is included. It offers a correction for cases in which application of a rule of conflict is based on a presumed connection which is only limited and where there is a closer relationship another law.
This involves a situation where, given all the circumstances of the case, apparently the presumed close relationship ‘exists only in a very small extent “and” in which another country has a much closer connection.
The law designated by the conflict rule remains inapplicable and instead, the law with which the much closer connection can be used. This article should be applied by the court ex officio. Of course sufficient facts must be stated by parties that lead to application of the exception clause. If the court is considering the use of this clause, and it has not been mentioned during proceedings, parties must be given the opportunity to give their opinion.
The provision only applies to statutory rules and can not set aside regulations of international and community law.

Article 10: Choice of Law
Article 10 provides that where a choice is allowed, this must be made explicitly or otherwise be sufficiently clear.
This rule was developed in international contract law and is for example enshrined in article 3 Rome Convention and Article 3 Rome I. The idea is that parties engaging in international agreements have the freedom
to choose which law they want to apply. In other treaties, such as Rome II (Article 4), the possibility of choice is
also included. It is therefore codification of existing law.

Article 14: Limitation and lapse of claims
Article 14 provides that whether a legal claim has prescribed or lapsed shall be determined pursuant the law applicable to the legal relationship giving rise to such a right or legal claim. This is in accordance with Dutch case law and with prevailing doctrine. (Dutch Supreme Court of 27 May 1983, NJ 1983, 561).

New Dutch international private law (introduction)

If a client in a cross border case decides to issue proceedings in the Netherlands it is important to know which private international rules a Dutch court will apply. After all these rules determine which country’s
law should apply.
As of 1 January 2012 the Dutch have a new book 10 of their Civil Code. This book is a codification and consolidation of existing Dutch international private law. Although little seems to change it has made Dutch international private law much more accessible. In this blog I will discuss the content of Book 10 and several general articles and
Title 14 of Book 10, on the law applicable to non-contractual obligations.

A number of existing regulations regarding conflict law have been
brought together in Book 10.
Book 10 contains fifteen titles:
Title 1: General provisions,
Title 2: Name,
Title 3: Marriage,
Title 4: Registered partnership,
Title 5: Parentage,
Title 6: Adoption,
Title 8: Corporations,
Title 9: Agency,
Title 10: Law of property,
Title 11: Law of trusts,
Title 12: Inheritance law,
Title 13: Contractual obligations,
Title 14: Obligations from a source other than contracts
Title 15: Some provisions with regard to maritime law, the law of inland
shipping and aviation law.

The legislation encompasses mainly rules of reference that indicate which national law should apply in private legal relations with cross border or foreign elements. Reference is made to several European treaties and regulations.
The act doesn’t contains rules of a procedural nature, such as rules onjurisdiction and rules relating to recognition and enforcement of judgments. These rules are included in the Dutch Civil Procedure Code.

Cross-border cases. Why it is important to decide in early stage where to bring your case.

Many products and services originate from abroad, involving cross-border transport. If damage is sustained as a result of a traffic accident, the question arises if, where and against which party a liability suit may be initiated. The same applies for defective products and services. There are different ways of conducting litigation, collecting and assessing evidence,  limitation periods and the ways in which these are to be interrupted. In addition there are huge differences between the ways in which the merits of a case are judged.

In some countries it is possible to demand damages for surviving dependants, whereas such is not possible in the Netherlands. Damages and the way these are determined also vary from country to country. Furthermore court proceedings vary and costs of lawyers are assessed in a different way.

For all these reasons it is essential to decide at a very early stage before which court a case is to be brought and which law is to be applied.

For more information please check our website http://www.legaltree.nl/en/services/liability-and-insurance/

Pain and suffering awards in the Netherlands

If you have had an accident in the Netherlands and suffered injuries and provided that there is a liable party from which you can claim damages  under Dutch law one of the questions you will ask yourself could be: Am I entitled to an award for pain and suffering?

According to Dutch law (article 6:95 in combination with article 6:106 BW)  there is a limited right to non-pecuniary damages.  The main source for these damages is article 6:106 Dutch Civil Code. According to article 6:97 Dutch Civil Code the judge is entitled to quantify the total amount of damages suffered .

Where an injured person suffers mentally from the consequences of physical injuries sustained, there are no specific requirements about the degree of seriousness of the mental suffering. If a victim has only suffered psychiatric injury, the threshold is that there is a recognizable psychiatric illness. Annoyance of greater or lesser mental discomfort will not suffice.
There is a wide margin of appreciation deciding on the amount of non-pecuniary damages.  The victim doesn’t need to specify to what extent he suffered non-pecuniary damages nor is he obliged to demand a specific amount. It is however wise to state all relevant facts and circumstances.
The Dutch Supreme Court has set out some basic rules. First of all a judge has to look at all circumstances of a particular case .  More specifically a judge should consider the injuries and the consequences of the injuries on the victims life. The injuries and disabilities are particularly relevant, as well as the age at which the accident occurred. As a rule the more severe the injuries and the younger the victim, the higher the damages awarded for pain and suffering.
Furthermore the judge  has to pay attention to case law in similar cases. This process is simplified by the collection of abstracts in a special edition in the review of traffic law ‘ Verkeersrecht ‘, the ‘ Smartengeldbundel ‘  which provides index-linked awards.  Judges can also refer to awards for non-pecuniary damages in other countries, albeit that the award can no be solely determined on that basis. A judge may also look at the nature of the liability.  There is no  absolute limit on the amount of non-pecuniary damages that can be awarded. There are no caps set by law or baremes. Awards are among the lowest in Europe.

An important thing to know is that a victim should explicitly claim an award for pain and suffering. If he or she fails to do so and dies the heirs can’t claim these damages.

If you need further information about Dutch law on negligence and damages you can contact Antoinette Collignon at antoinette.collignon@legaltree.nl

Amsterdam, 6 March 2011

copyright Antoinette Collignon