Short Reads

How to substantiate a claim for disclosure of records

How to substantiate a claim for disclosure of records

How to substantiate a claim for disclosure of records

05.04.2016 NL law

HR 13 November 2015, ECLI:HR:2015:3304 (AIB/Novisem).

The judgment of the Dutch Supreme Court dated 13 November 2015 addresses the extent to which a claimant should substantiate its legitimate interest and legal relationship when claiming disclosure of documents, as required by the Dutch Code of Civil Procedure (CCP).

Article 843a CCP provides the basis for claiming disclosure of evidence regarding records (bescheiden), including both hard copy and electronic files, for those claimants with  a legitimate interest in obtaining evidence. Paragraph 1 of the provision reads:

“Anyone having a legitimate interest can, at his own expenses, require from the person who has records at his disposal or in his possession, access to or a copy of specific records with regard to a legal relationship to which he or his legal predecessors are party (…)

Such claims can be submitted as a procedural matter in pending proceedings, such as proceedings on the merits. It can also be brought forward in independent proceedings, such as preliminary relief proceedings. Disclosure of records can be claimed from the party with whom the relevant “legal relationship” exists. Disclosure can also be demanded from a third party who has relevant records at his disposal, even if that third party is not necessarily a party to the legal relationship.

Article 1019a CCP further specifies that an intellectual property infringement qualifies as a legal relationship for disclosure pursuant article 843a CCP.

In the judgment at hand – in preliminary relief proceedings – the claimant, AIB, requested copies of all records, such as transport documents, administration, e-mails, correspondence, advertisement, regarding the trading in three specific varieties of celeriac. AIB argued that it could legitimately claim disclosure of these records because there were sufficient grounds to suspect infringement of protected plant variety rights by the defendant, Novisem. AIB substantiated this with proof of dissemination of a price list which mentioned the protected celeriac plant varieties and proof of a sales meeting promoting the varieties concerned. Novisem defended its position and claimed that it had not actually sold any plant material in the Netherlands and that the relevant activities were aimed at buyers outside the Netherlands, where the variety rights were not protected.

The Court of Appeal ruled that under these circumstances (and in view of Novisem’s defence) it was not sufficiently convinced that an infringement of the variety right of the claimant would be established in the proceedings on the merits and dismissed the claim. The Court added that in any case the possible infringement would be minor and for this reason the requested disclosure of records could not be justified.

Before the Supreme Court, AIB complained that the test applied by the Court of Appeal is too strict. According to AIB, a claimant is only required to substantiate its legal relationship on the basis of which it has a legitimate interest in disclosure of the records and the court should not assess the likelihood of success in the proceedings on the merits.

The Supreme Court ruled that when the existence of a legal relationship (such as an infringement of an intellectual property right) is disputed, the claimant should substantiate its claims using evidence which is already available, to the extent that the infringement, or the threat thereof, is sufficiently likely. It depends on the actual statements of both parties and the evidence presented whether the existence of a legal relationship is sufficiently likely. The Supreme Court also clarified that the threshold to determine the likelihood of the infringement, to be demonstrated by the claimant, is lower than that required in an injunction claim regarding the infringement in summary proceedings.

In addition, the Supreme Court ruled that, even if the evidence presented to the Court at most revealed a minor infringement (as stated in the judgment of the Court of Appeal), this does not entail that the claimant does not have a legitimate interest in disclosure of records. The disclosure is justified by the need of the claimant to further substantiate the nature and scale of the infringement.

The post How to substantiate a claim for disclosure of records is a post of www.stibbeblog.nl.

 

Related news

20.06.2019 NL law
Stibbe advises Westermeerwind

Inside Stibbe - The District Court Midden-Nederland ruled in favour of Westermeerwind B.V. on 19 June, in a case brought by organisations acting for the 'Westermeerwind Group'. The group had claimed that the 32 members of that group had the right to participate in the Windpark Westermeerwind at a much lower price than other participants, and with a different corporate structure.

Read more

28.05.2019 NL law
Dutch court: insufficient substantiation? No follow-on cartel damages action

Short Reads - Dutch courts are forcing claimants (including claims vehicles) to be well-prepared before initiating follow-on actions. The Amsterdam District Court in the Dutch trucks cartel follow-on proceedings recently ruled that claimants – specifically CDC, STCC, Chapelton, K&D c.s. and STEF c.s. – had insufficiently substantiated their claims. These claimants now have until 18 September 2019 to provide sufficient facts regarding transactions that – according to them – were affected by the cartel. Preparation should thus be key for cartel damages actions.

Read more

04.06.2019 NL law
Dutch Supreme Court clarifies evidentiary rules concerning signatures and signed documents

Short Reads - In two recent decisions, the Dutch Supreme Court has clarified the evidentiary power of signed documents. If the signatory unambiguously denies that the signature on the document is his or hers or claims that another party has tampered with the signature (for instance, through forgery or copying a signature from one document and pasting it in another), it is up to the party invoking the signed document to prove the signature's authenticity (ECLI:NL:HR:2019:572).

Read more

24.05.2019 NL law
European regulatory initiatives for online platforms and search engines

Short Reads - As part of the digital economy, the rise of online platforms and search engines raises all kinds of legal questions. For example, do bicycle couriers qualify as employees who are entitled to ordinary labour law protections? Or should they be considered self-employed (see our Stibbe website on this issue)? The rise of online platforms also triggers more general legal questions on the relationship between online platforms and their users. Importantly, the European Union is becoming increasingly active in this field.

Read more

03.06.2019 NL law
Toerekening van kennis van groepsvennootschappen

Articles - In de praktijk doet zich vaak de vraag voor of kennis die aanwezig is binnen de ene vennootschap kan worden toegerekend aan een andere vennootschap binnen hetzelfde concern. In dit artikel verkent Branda Katan zowel de dogmatische grondslag als de praktische toepassing van een dergelijke toerekening. Zij concludeert dat het ‘Babbel-criterium’ (heeft in de gegeven omstandigheden de kennis X in het maatschappelijk verkeer te gelden als kennis van Y?) geschikt is voor het toerekenen van kennis in concernverband.

Read more

01.05.2019 NL law
Arbitral award obligating Ecuador to prevent enforcement of USD 8.6 billion order does not violate public order

Short Reads - Due to environmental damage as a result of oil extraction in the Ecuadorian Amazon, oil company Chevron was ordered to pay USD 8.6 billion to Ecuadorian citizens. In order to claim release of liability, Chevron and Texaco initiated arbitration proceedings against Ecuador. Arbitral awards ordered Ecuador to prevent enforcement of the Ecuadorian judgment, leaving the Ecuadorian plaintiffs temporarily unable to enforce their judgment. According to the Supreme Court (12 April 2019, ECLI:NL:HR:2019:565), these arbitral awards did however not violate public order.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring