Dutch courts have not yet developed procedural rules for the WAMCA, the new Dutch regime for collective redress. This adds to pre-existing uncertainty around many procedural aspects of this new law. In my recent editorial for the Nederlands Tijdschrift voor Burgerlijk Recht (Dutch Civil Law Review, only accessible with a WoltersKluwer Navigator subscription), I discuss recent court decisions and identify a few additional problems that are arising now that the WAMCA is being put to the test. Here’s a summary.
Some of the issues I highlight in my editorial relate to the claimant’s obligation to register new collective claims. Within two days after serving the writ of summons on the defendant, the claim organisation needs to both submit a full copy of the summons to the court registry and submit an anonymised copy in the Central registry of collective actions. A failure to meet these obligations leads to inadmissibility of the claimant.
The entry in the registry is intended to give competing claim organisations a chance to prepare an alternative collective action based on the same event(s), and enter into a ‘beauty contest’ with the original claimant in order to be appointed as exclusive representative.
One would think that a summary of the writ of summons would sufficiently enable competing claim organisations to prepare their own action. The intention was never to allow competing organizations to enhance their position by taking note of the details of the argumentation developed by the original claim organisation; however, that appears to be the unforeseen result of an inconsistency between two versions of the WAMCA. The WAMCA was enacted as one version for electronic litigation and another for paper-based litigation – added late in the legislative process when it became clear the project for digitalising civil litigation was running into delays. While the ‘electronic’ WAMCA states that a summary must be sent to the Central registry, the ‘paper’ WAMCA refers to a full copy of the summons. The project for electronic litigation has now been put on hold, forcing claim organisations to publish their full argumentation, as they cannot afford the risk of non-admissibility.
The harsh sanction of inadmissibility in the event of a late submission of the summons to the court registry does not fit in well with Dutch law on civil procedure. In a judgment of 1 April 2020 the Amsterdam district court held (translated):
“Thus, late filing at the court registry is in this case no more than an administrative omission as a result of which no (potential) litigants have been harmed in their interests, an administrative omission that has not had nor will have any permanent adverse consequences.“
Despite the clear text of the law, the court refused to declare the claim organisation inadmissible.
In a judgment of 30 September 2020 (in a case where Jeroen Kortmann and I represent Daimler and Mercedes-Benz) the Amsterdam district court did not sanction the claim organisation’s breach of the official anonymisation guidelines for writs of summons that are sent to the Central registry for publication.
Extension request by competing claim organization
Once the writ of summons has been published in the Central registry, competing claim organisations have three months to serve their own writ on the defendant. Within one month after publication, they may ask the court for an extension of the three-month period. This process is heavily under-regulated; no guidelines exist as to, for example:
- on what grounds an extension may be granted;
- whether, once granted, other competing claim organisations can also profit from the extension;
- whether the competing claim organisation (or the court) must inform the original claimant and the defendant of the extension request;
- whether the original claimant and the defendant must be allowed to state their opinion on the request, and whether they must do so through an attorney (the defendant may not yet have one);
- how much time the original claimant and the defendant will have to state their opinion, and within how much time the court will decide. If the court rejects the request for an extension at the latest moment, the competing claim organisation will be in a time squeeze.
The first two issues were dealt with in the judgment of 30 September 2020 mentioned above. The other uncertainties would typically be taken away in procedural rules, such as those that exist for many other types of civil procedures. It is about time the judiciary presents such a set of rules, because the current uncertainties are hardly acceptable.
After I wrote my editorial, the Amsterdam district court published a judgment of 28 October 2020 in which it identified more imperfections, like the sloppy formulation of the articles concerning collective actions for idealistic purposes and the failure to provide for the situation where several claim organisations bring a claim together instead of as competing claimants. The WAMCA provides for an exception to its strict admissability criteria for claim organisations who institute an idealistic action for a very small financial interest. The court applies that exception for the first time in this interim judgment.