Dutch Court sanctioned party to proceedings for multitude of submissions

Last summer, in proceedings in which the Dutch Court gave judgement, the claimant was ordered to pay a higher than usual reimbursement of the other party’s legal costs. The Dutch Court had done this in connection with the way it had litigated. Dutch Procedural Lawyer Thomas van Vugt explains the judgement.

Former director held liable for mismanagement

In this case, bedding giant Swiss Sense had sued a former director because Swiss Sense was of the opinion that he was liable towards them in connection with (in short) mismanagement. Swiss Sense claimed damages of more than one million euros. However, the former director took the view that a settlement agreement had been established in which he and Swiss Sense had granted each other final discharge.

Swiss Sense sued former director

Nevertheless, Swiss Sense’s lawyer sued its former director. It directed a multitude of accusations at the former director, including allegations that he had falsified a lease agreement, concluded adverse agreements with third parties, and that there had been a conflict of interests. It was also alleged that, following his departure, he had copied Swiss Sense products, passed on confidential information, and that he had been bribed. However, Swiss Sense’s lawyer did not succeed in proving these allegations: The Court rejected all claims, but Swiss Sense did submit a multitude of exhibits to the Court.

Too many exhibits and exhibits submitted too late

Fourteen days before the parties’ personal appearance, Swiss Sense’s lawyer submitted fourteen additional exhibits to the Dutch Court. Then, four days before the appearance, he submitted four additional exhibits to the Dutch Court, and three days before the appearance, he submitted three more exhibits. In total, it was a 6 centimetres’ thick package. The Dutch Court was of the opinion that the last two exhibits were submitted too late, and that it concerned documents that had been available to Swiss Sense for quite some time. Moreover, Swiss Sense’s lawyer did not give a reason why these exhibits were only submitted to the Dutch Court at the last moment. The Dutch Court found that the late submission of the documents was in contravention of the due process of law.

Exhibits without explanation not allowed

The Dutch Court did not allow the majority of the fourteen exhibits that were submitted on time either. It considered that they consisted of sets of invoices and statistics without any explanation. The Court found that these exhibits could have been produced much earlier. Moreover, the former director cannot be expected to properly assess and put up a defence against the content of these exhibits between the date of filing and the date of the hearing. The Court found that this seriously prejudiced the former director’s defence. Therefore, the clerk of the court rejected these exhibits and returned them to Swiss Sense.

Multitude of submissions at Dutch court hearing

The Dutch Court then found that at the hearing, the defendant had to defend himself against a multiplicity of submissions by Swiss Sense. Therefore, according to the Dutch Court, it was in fact not only a hearing but also a plea. In view of this, and given the extent of the case, the Court ordered Swiss Sense to pay the defendant an additional amount in the lawyer’s legal costs. Instead of the usual rate (given the importance of the case and the number of procedural acts) of € 9,633, Swiss Sense had to pay the defendant a sum of € 12,844.