Short Reads

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 disci

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.

Related news

07.11.2019 NL law
Symposium 'From Stint to Fipronil: a compensation fund for victims of energetic government intervention in crisis situations

Seminar - Stibbe is organising a symposium in Amsterdam on Thursday 7 November entitled 'From Stint to Fipronil: a compensation fund for victims of energetic government intervention in crisis situations'. During this symposium, Stibbe lawyer Tijn Kortmann and Prof. Pieter van Vollenhoven, alongside other experts,  will speak about the compensation fund which, according to van Vollenhoven, injured parties should be able to call upon if a decision by the government turns out to be too drastic.

Read more

27.09.2019 NL law
Stibbe is attending the IBA's annual conference in Seoul

Conference - The annual conference of the International Bar Association (IBA) is currently taking place in Seoul. There are fourteen partners from Stibbe attending the event. Several of them have speaking slots on a wide range of legal topics and will take part in various panel discussions.

Read more

03.10.2019 NL law
Calculating future damages from the past, Science Fiction or law?

Short Reads - Imagine having been blocked from expanding your business in 1975, litigating a claim for lost opportunities for all those years, winning that proceedings on the merits, and then having to start separate legal proceedings to determine the amount of damages to be awarded (schadestaat procedure). How does one value, in 2019, a business opportunity lost in 1975?

Read more

11.09.2019 EU law
Legal trend: climate change litigation

Articles - Climate change cases can occur in many shapes and forms. One well-known example is the Urgenda case in which the The Hague Court condemned the Dutch government in 2015 for not taking adequate measures to combat the consequences of climate change. Three years later, the Court of Justice of The Hague  upheld this decision, and it is now pending before the Dutch Supreme Court. This case is expected to set a precedent for Belgium, i.a. Since both the Belgian climate case and the Urgenda case are in their final stages of proceedings, this blog provides you with an update on climate change litigation.

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