Product Liability 2009 - Arnold & Porter LLP

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Lovells LLP Netherlands However, based on Article 6:109 NCC, the Court can limit damages, taking into account the type of liability at issue, the legal relationship between the parties and the financial capacity of both parties. It is generally accepted that the Courts must be very restrictive in applying Article 6:109 NCC to limit recovery. As the Courts have freedom to determine the level of damages to be paid, there can be no real indication of the level of damages to be expected. The Court will consider what is reasonable in the circumstances. 6.6 Do special rules apply to the settlement of claims/proceedings e.g. is court approval required for the settlement of group/class actions, or claims by infants, or otherwise? No special rules do apply. Under the WCAM there is no court necessary for the formation of the settlement. The Court of Appeal in Amsterdam comes into play not until the parties have reached the settlement. However, the court does have the power to reject a request to declare a collective settlement binding. This will be the case if the settlement does not comply with the specific requirements. So although there is no court approval required for the settlement itself, for the consequences parties will need the approval of the court of Appeal in Amsterdam. 6.7 Can Government authorities concerned with health and social security matters claim from any damages awarded or settlements paid to the Claimant without admission of liability reimbursement of treatment costs, unemployment benefits or other costs paid by the authorities to the Claimant in respect of the injury allegedly caused by the product. If so, who has responsibility for the repayment of such sums? No. There is no Government authority under Dutch law who will have the power to do so. Concerning consumer goods a relevant Government authority under Dutch law is The Food and Consumer Product Safety Authority (“VWA”). As said under question 1.4, the VWA monitors compliance with the Commodities Act and the Commodities Act Decree. The VWA will take measures if a company does not fulfil his obligations out of these two statutory regulations. The VWA can prohibit the company to place consumer products on the market which are considered as dangerous, can order the company to undertake a product recall or can initiate a product recall by itself. If the VWA incurred costs for taking one of these measures, then it will have the right to recourse this loss against the company responsible. 7 Costs / Funding 7.1 Can the successful party recover: (a) court fees or other incidental expenses; (b) their own legal costs of bringing the proceedings, from the losing party? The unsuccessful party is usually ordered to pay the legal costs of the successful party (Article 237 CCP). The costs to be paid are fixed by the Court, according to a scheme, which is based on the “value of the case”, i.e. the amount claimed. The costs as fixed by the Court are usually much lower than the actual costs. The successful party has no action at his disposal to claim the remaining part of his legal costs. This system has been criticised for a long time, but it is not expected to change in the near future. 7.2 Is public funding e.g. legal aid, available? ICLG TO: PRODUCT LIABILITY 2009 © Published and reproduced with kind permission by Global Legal Group Ltd, London Pursuant to the Acts on Legal Aid (Wet op de Rechtsbijstand), distinction must be made between single householders and people who run a joint household with one or more persons. Single householders with an income of less than approximately €22,900 per year and people who run a joint household with one or more persons with an income not more than €32,400 per year have a right to legal aid paid by the State if certain criteria are met (Article 12 in conjunction with Article 34 Acts on Legal Aid). Those criteria are inter alia: the legal interests must concern the Netherlands and the costs of the legal aid must be in reasonable proportion to the interest of the case. The aid consists of the payment of most of the individuals own legal fees. The individual always has to pay a small amount himself. In addition, he has to pay the Court fees and, in the event he loses the case, the other party’s costs, as ordered by the Court. 7.3 If so, are there any restrictions on the availability of public funding? See question 7.2 above. 7.4 Is funding allowed through conditional or contingency fees and, if so, on what conditions? Contingency and conditional fee arrangements and even “no win no fee” arrangements with lawyers are to some extent allowed, particularly in personal injury cases. However, in practice only a limited number of lawyers will accept these arrangements. The vast majority of lawyers work on the time-spent fee basis only. 7.5 Is third party funding of claims permitted and, if so, on what basis may funding be provided? No third party funding of claims is not permitted under Dutch law. 8 Updates 8.1 Please provide, in no more than 300 words, a summary of any new cases, trends and developments in Product Liability Law in the Netherlands. On 17 December 2008, the first decision in The Netherlands regarding liability of tobacco manufacturers was given. In this case ex-smoker, Mr Romer, summoned the tobacco manufacturer British American Tobacco (“BAT”) for alleged damages to his health caused by the cigarettes of BAT. The case has been decided in favour of BAT. The District Court in Amsterdam decided that for a manufacturer to be liable it is insufficient that smoking causes damages to the health, and that the damages to Mr Romer’s health in this specific case were caused by smoking. In the event that the risk of smoking and the damages it may cause to one’s health are generally known by the average consumer, it cannot be said that cigarettes are defective products. The Court decided that the risks of smoking were generally known since ate least 1963. This conclusion from the Court was based on several scientific reports which were published since 1950 and the large attention which was given to these reports and the debate thereof in the press. WWW.ICLG.CO.UK 237 Netherlands
Netherlands 238 Lovells LLP Netherlands Klaas Bisschop Lovells LLP Keizersgracht 555 1017 DR Amsterdam The Netherlands Tel: +31 20 5533 600 Fax: +31 20 5533 777 Email: klaas.bisschop@lovells.com URL: www.lovells.nl Klaas Bisschop joined the Amsterdam office of Lovells as a partner in 2001. He is a leading practitioner in product liability, and a member of Lovells’ International Product Liability Network. Klaas is a specialist in litigation and heads the litigation department of the firm’s Amsterdam office. He is regularly involved in product liability cases for clients in, amongst others, the pharmaceutical, automotive and tobacco industry. Klaas has been responsible for litigation before the Dutch Courts, the European Court of Justice and Arbitral Panels. Karen Jelsma Lovells LLP Keizersgracht 555 1017 DR Amsterdam The Netherlands Tel: +31 20 5533 600 Fax: +31 20 5533 777 Email: karen.jelsma@lovells.com URL: www.lovells.nl Karen Jelsma joined Lovells in 2007 and is one of the litigators within the Amsterdam office of Lovells. She deals with all aspects of contract law and (class action) litigation. Her litigation practice focuses on product liability and commercial matters. Karen also provides advice on issues such as product safety and product recalls, including the notification of product recalls to the Dutch authorities. With over three and a half thousand people operating from 27 offices in Europe, Asia, the Middle East and the USA, Lovells is one of a small number of truly international law firms. Lovells has an outstanding product liability practice covering all aspects of product liability including risk prevention and management, compliance with product safety regulations, product recalls and personal injury claims, with particular emphasis on multi-party and cross-border litigation. The practice operates in all key jurisdictions with over 90 highly experienced practitioners globally. Our lawyers have been closely involved in many of the major product liability issues over the last decade, having advised on a wide range of products including pharmaceuticals, food and drink, motor vehicles, tobacco, mobile phones, aircraft, trains, vaccines, cosmetics, blood products, medical devices and asbestos. Lovells’ product liability lawyers are supported by dedicated Science and Project Management Units. To find out how Lovells can help you around the world, please contact: John Meltzer, Head of Lovells International Product Liability Practice: Tel: +44 20 7296 2276 or john.meltzer@lovells.com WWW.ICLG.CO.UK ICLG TO: PRODUCT LIABILITY 2009 © Published and reproduced with kind permission by Global Legal Group Ltd, London
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The International Comparative Legal
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EDITORIAL Welcome to the seventh ed
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6 Chapter 2 Strategies For Dealing
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22 Lovells LLP John Meltzer Lovells
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24 Update on U.S. Product Liability
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32 Chapter 5 REACH and the Consumer
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34 REACH and the Consumer Products
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52 Chapter 7 Product Liability and
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54 Product Liability and Product Re
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Albania 58 Tonucci & Partners Alban
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England & Wales 128 Arnold & Porter
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Finland 138 Roschier, Attorneys Ltd
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