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Dutch Supreme Court rules on the importance of the judgment of a disciplinary court for the judgment on civil liability

Dutch Supreme Court rules on the importance of the judgment of a disciplinary court for the judgment on civil liability

04.12.2017 NL law

In its decision of 22 September 2017, ECLI:NL:HR:2017:2452 the Dutch Supreme Court ruled that a judgment on civil liability must include sufficiently comprehensible reasons explaining why it differs from a judgment given by a disciplinary court on the same facts.

Background of the case

The plaintiff had a company that imported flowers from Kenya. Since its formation, the company had received advice from the defendants, an accounting firm and the registered accountant for the company. The plaintiff decided to enter into a joint venture with Kenyan partners. Due to financial problems, the plaintiff concluded an acquisition agreement with those partners to acquire their shares in the joint venture. ''X'' approached the plaintiff and his company and said that he could put the plaintiff in touch with potential financiers for the acquisition. The financing, however, was never concluded. Eventually, the plaintiff's company went into liquidation.

Proceedings

The plaintiff filed a complaint with the Accountancy Division of the District Court on the basis that the accountant had never questioned the conduct of X or challenged the proposed arrangement between X and the financiers. This complaint resulted in a warning to the accountant. Subsequently, the plaintiff claimed damages from the defendants, arguing that they had acted wrongfully towards the plaintiff by failing to exercise the duty of care that may be expected from a reasonably competent (firm of) accountant(s), acting reasonably in similar circumstances. According to the plaintiff, the accountant had not sufficiently warned him about X. The District Court rejected plaintiff's claims.

The Court of Appeal confirmed the District Court's verdict. It ruled that the judgment of the Accountancy Division did not automatically mean that the accountant had acted wrongfully and would be liable for the damage. The Court of Appeal concluded that the accountant was not to blame, because of the following circumstances:

  • X directly approached the plaintiff and his company and was not introduced by the accountant;
  • X received a monthly management fee of EUR 10,000 from the plaintiff;
  • no one, not even an experienced businessman like the plaintiff, was ever suspicious of X;
  • apparently, X was convincing and used various tricks to conceal the truth;
  • it was not established that all of the proposed financiers were fictional; and
  • the accountant was not an expert in assessing potential financiers.

Supreme Court judgment

In cassation, the plaintiff complained that the judgment of the Court of Appeal was incomprehensible in the light of the judgment of the Accountancy Division.

Pursuant to its settled case law (ECLI:NL:HR:2015:831 and ECLI:NL:HR:2002:AE1532) the Supreme Court held that if an act violates the standards and rules of the relevant profession, this does not automatically mean that the individual in question is liable under civil law. If the judge makes a decision that differs from the judgment of the disciplinary court, the judgment on civil liability must include sufficiently comprehensible reasons explaining why it differs from a judgment given by a disciplinary court on the same facts.

According to the Supreme Court, the judgment of the Court of Appeal did not follow this approach. The Supreme Court held that determining whether the accountant was liable for the damage in this case depended on whether the accountant should have warned the plaintiff about X. The plaintiff included this in his notice of appeal, but the Court of Appeal did not address this issue. However, the Court of Appeal held that the expenses incurred could have been (partly) prevented had the plaintiff been aware of X's conduct. For this reason, the Supreme Court set aside the decision of the Court of Appeal and referred the case back to the Court of Appeal.

In this case the Supreme Court repeated the rule that a finding by a disciplinary court does not automatically lead to civil liability and that the judgment on civil liability must include sufficiently comprehensible reasons explaining why it differs from a judgment given by a disciplinary court on the same facts.

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