ECLI:NL:RBAMS:2025:7713, Rechtbank Amsterdam, 14-05-2025, C/13/747331
Rechtbank Amsterdam — Uitspraak 
Datum: 2025-05-14 00:00:00.000000
Rechtsgebied: Civiel recht

Samenvatting: Intervening party is allowed to introduce a subrogation claim, even after the statement of defence in the main proceedings has been submitted. This is not contrary to Articles 218 and 219 DCCP and does not violate due process. The defendant will have sufficient time to respond to the subrogation claim. And it is in the interest of justice and efficiency to deal with the subrogation claim concurrently with the main claim, as these claims are closely connected and a risk of incompatible judgments would exist if the claims were dealt with separately.
      
      
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        De tussenkomende partij wordt toegestaan om een vordering tot subrogatie in te dienen, zelfs in het onderhavige geval waarin de conclusie van antwoord al is genomen. Dit is niet in strijd met artikel 218 Rv, noch in strijd met de eisen van een goede procesorde. Gedaagde heeft voldoende tijd om op de vordering tot subrogatie te reageren en het is in het belang van een goede rechtspleging en een voortvarende behandeling dat de subrogatievordering tegelijk met de hoofdvordering wordt afgedaan. Deze vorderingen zijn nauw met elkaar verbonden en afzonderlijke behandeling zou het risico meebrengen op onverenigbare beslissingen.

judgment
    AMSTERDAM DISTRICT COURT
    
    
      Netherlands Commercial Court 
      NCC District Court
    
    
    
      Case number: C/13/747331
    
    
    
      
        Judgment on the motion
      
    
    
    14 May 2025
    
    
      
        Claimant in the original claim
      
      
        Defendant on the motion in the original claim:
      
      
        WELTEN GROUP B.V.,
      ‘s-Hertogenbosch (the Netherlands)
      represented by H.J. van der Baan, G. Straub, J.W. Snel and F.J. Smeets, lawyers,
    
    
    
      
        Defendant in the original claim
      
      
        Defendant on the motion in the original claim:
      
      
        ONE TWO WORK B.V.,
      Amsterdam (the Netherlands),
      represented by T.S. Jansen, L.M. Veth, J. van Hemel and M. Nuijten, lawyers.
    
    
    
      
        Claimant on the motion:
      
    
    1. ARCH INSURANCE (EU) DAC
    Dublin (Ireland)
    2. LLOYD’S INSURANCE COMPANY S.A.
    Brussels (Belgium)
    3. AXIS SPECIALTY EUROPE SE
    Dublin (Ireland)
    4. ZURICH INSURANCE EUROPE AG
    
      as the legal successor to Zurich Insurance Plc Frankfurt (Germany)
      represented by S. Derksen and I. Léger (member of the Paris Bar), lawyers.
    
    
    
      The parties are referred to below as Welten, OTW and the Underwriters respectively. 
    
    
  
  
    
      1Procedural history
    
      1.1.
      The proceedings to date are listed in the interim judgment given in the original claim and the motion in the counterclaim on 5 March 2025 (the ‘Second Interim Judgment’, publication number ECLI:NL:RBAMS:2025:1453).
      
    
    
      1.2.
      On 11 April 2025, the Court denied OTW’s request to allow interim appeal against the Second Interim Judgment, and partially allowed its request for an extension to submit briefs pursuant to that judgment. The Court also set a time limit for Welten and OTW to respond to the Underwriters’ introduction of a subrogation claim (the “Motion”) by letter dated 7 April 2025.
      
    
    
      1.3.
      OTW objected to the motion by letter dated 16 April 2025. By letter of the same day, Welten deferred to the discretion of the Court. 
      
    
  
  
    
      2The Motion
    
      2.1.
      The Underwriters seek to introduce a claim of their own in these proceedings. They want to request the Court: 
      
        
          to declare that OTW is liable to the Underwriters for the settlement amount paid by the Underwriters to Welten in respect of Welten’s claim against OTW in respect of the damages caused by the Breach of Warranties 18.1 and 18.2 included in Annex 10 of the SPA,
        
        
          to order OTW to pay the Underwriters jointly the sum of EUR 6,750,000 in damages, to be increased by statutory interest, 
        
        
          to order OTW to pay the costs of the Underwriters made in respect of these proceedings including the post-judgment costs, with statutory interest.  
        
      
      
    
  
  
    
      3Discussion
    On the Motion
    
    
      3.1.
      On 27 November 2024, the Underwriters raised a motion to allow them to intervene in these proceedings on the basis of Article 217 Dutch Code of Civil Procedure (DCCP). The Court granted this motion on 20 December 2024, and allowed the Underwriters to submit a statement of claim on 6 January 2025. On that date, the Underwriters did not submit a statement of claim. They did submit a ‘statement on behalf of the intervening parties’ informing the Court that they “intervene on behalf of Welten in these proceedings (voegen aan de zijde van Welten).”  The Court allowed this change in position because the Underwriters still had an interest in attending the hearing (to protect their right of recourse against OTW in case of fraud) and no party was harmed by the Underwriters’ continuing to participate in the proceedings.
      
    
    
      3.2.
      On 7 April 2025, the Underwriters introduced a claim of their own (see para. 2.1). The Court allowed Welten and OTW to respond.
      
    
    
      3.3.
      Welten deferred to the discretion of the Court. OTW raised several objections:
      
        
          there have been no new relevant developments since the Underwriters joined the proceedings; the Underwriters have apparently simply changed their minds,
        
        
          a joining party cannot institute entirely new claims; this would constitute a new request for intervention, which is tardy (Article 218 DCCP),
        
        
          the initial motion for intervention was void (nietig) for the purposes of bringing these claims in the proceedings, as it did not comply with the requirements of Article 219(2) DCCP,
        
        
          the Underwriters violated due process by first seeking to be allowed into the proceedings as a joined party, only to then come up – far beyond any reasonable time limit – with a new claim as an intervening party,
        
        
          by the Court allowing a new claim at this late stage, the Underwriters would significantly expand the scope of these proceedings which would inevitably cause an undue delay,
        
        
          the outcome of the main proceedings cannot result in a subrogation right, as any damages awarded to Welten are to be reduced by any amounts recovered from the Underwriters; the Underwriters need to initiate separate proceedings,
        
        
          allowing a new claim after the procedural debate on the merits has ended and an interim judgment has been rendered is contrary to Dutch procedural law, due process and the right to a fair trial.
        
      
      
    
    
      3.4.
      The Court need not take a decision on whether the introduction of the claim by the Underwriters is to be considered a change of position or the initiation of a new claim for intervention. In either case the Underwriters should be allowed to introduce the new claim. The reasons for this finding are as follows. 
      
    
    
      3.5.
      The Underwriters’ interest in joining or intervening in these proceedings is still the same: to protect their right of recourse against OTW. 
      
    
    
      3.6.
      The claim for intervention and the subrogation claim were introduced in a timely fashion. Under Article 218 DCCP a claim for intervention is brought by submitting a motion on or before the court calendar date on which the last statement in the pending proceedings is submitted. This requirement is not only fulfilled where (in first instance) the statement of defence is submitted (which generally is the last statement prior to the hearing on the merits), but also where – after such a statement - an interim judgment has been given allowing the parties to elaborate on their position in writing.
      
    
    
      3.7.
      The Court is aware that the Second Interim Judgment only allows the parties to submit a “brief” (in Dutch: “een akte”) on certain issues, whereas Article 218 DCCP speaks of “statement” (“conclusie” in Dutch, which is generally not limited to certain factual or legal issues). However, the purpose of the statutory time limit is to allow the parties in the main proceedings to exchange their views on the third party’s wish to intervene in the proceedings and its intended claim prior to the court ruling on the merits of the main proceedings. This is confirmed by the parliamentary history on the simplification and digitalisation of the rules of procedure (which legislation was eventually withdrawn), resulting in the term “statement” being changed into “last written exchange of arguments”. This includes the exchange of arguments on specific issues. 
    
    
      3.8.
      This is the case here. In the Second Interim Judgment the Court did not give a final ruling on the claims brought by Welten, but allowed Welten and OTW (and the Underwriters in their position as joining party on Welten’s side) to comment on certain issues relevant for this final decision. The calendar date for submitting the briefs is 4 June 2025, which allows ample time for Welten and OTW to respond to the Underwriters’ claim. 
      
    
    
      3.9.
      OTW’s reliance on Article 219(2) DCCP is to no avail. Where the claim and grounds for the claim were missing in its initial motion for intervention on 27 November 2024, this has been rectified by the Underwriters’ letter dated 7 April 2025. This is allowed under Article 219(2) in conjunction with Article 122 DCCP.
      
    
    
      3.10.
      Based on the above analysis, the Underwriters introduced their claim on time, but they may still violate due process, so that the Court will enquire as to whether there is a violation here. The Court concurs with OTW that the Underwriters could have introduced their claim earlier, as the Court set a date specifically for this purpose (6 January 2025). They chose to join Welten’s side instead. However, this is understandable, as on that same date a last-minute settlement was reached in the dispute between Welten and the Underwriters on the amount of damages due to Welten under the Policy. This dispute prompted the Underwriters to initially seek intervention in these proceedings. 
      
    
    
      3.11.
      The fact that the claim was introduced after the Second Interim Judgment was given does not prejudice OTW in its defence. The briefs pursuant to that judgment need not be submitted before 4 June 2025 and OTW will be given a time limit of 6 weeks from today to submit its statement of defence. This allows OTW enough time to prepare a defence against the subrogation claim. Moreover, the Court expects the parties – given the interests involved – to request a hearing after the briefs have been exchanged. This will result in some delay, but this is to be expected where the dispute cannot be dealt with by the Court in its entirety after the first hearing. Therefore, the Court will set a tentative hearing date not only to deal with the subject of the briefs (the damages to be awarded to Welten), but also on the Underwriters’ subrogation claim. 
      
    
    
      3.12.
      
        Allowing the subrogation claim to be dealt with in these proceedings is in the interest of justice and efficiency, as the claims are closely connected and a risk of incompatible judgments would exist if the claims were dealt with separately. OTW’s liability towards the Underwriters is dependent on its liability towards Welten (see Clause 11.5 of the SPA).
        Dealing with the Underwriters’ subrogation claim in these proceedings is also efficient, as it eliminates the need for separate proceedings and does not result in a delay of these proceedings. The Underwriters made their position as to OTW’s liability clear in the main proceedings so far (they were allowed to comment on that as a joining party), which was taken into account in the Court’s Second Interim Judgment. The issue of OTW’s liability on the basis of fraud does not need to be re-litigated.
      
      
    
    
      3.13.
      OTW’s objections against the introduction of a subrogation claim are therefore without merit. OTW will be allowed to submit a statement of defence on the Underwriters’ subrogation claim within 6 weeks from now.
      
      
    
  
  
    
      4Decisions
    on the Motion
    
    
      4.1.
      The Court allows the Underwriters to introduce their subrogation claim.
      
      
        
          on the main proceedings
        
      
      
    
    
      4.2.
      The Court directs OTW to submit its statement of defence on the subrogation claim no later than 25 June 2025.
      
    
    
      4.3.
      The schedule in the 18 April 2025 directions remains in effect, the tentative hearing date listed in those directions being regarded as the actual hearing date.
      
      
        Done by L.S. Frakes, C.W.D. Bom and N.A.J. Purcell, Judges, assisted by W.A. Visser, Clerk of the Court. 
      
      
      
        Issued in public on 14 May 2025.
      
      
      
      
        
          APPROVED FOR DISTRIBUTION IN eNCC 
        
        
          SIGNATURE PAGE 1 OF 2
        
      
      
      
      
      
      
      
      
      
      
      
      
      
      
        Mr Frakes
        (Judge)						
      
      
      
      
        
          SIGNATURE PAGE 2 OF 2
        
      
      
      
      
      
      
      
      
      
      
      
      
      
        Mr Visser
        (Clerk)
      
      
    
  
  
     Tweede Kamer, vergaderjaar 1999-2000, 26 855, nr. 3, p. 128: “Volgens artikel 2.9.11 [Article 218; added by the Court] moet de vordering worden ingesteld vóór of op de roldatum waarop de laatste conclusie wordt genomen. Wellicht ten overvloede zij hier vermeld dat dit betekent dat de vordering tot voeging of tussenkomst niet meer kan worden ingesteld nadat een dag is bepaald voor het uitspreken van een vonnis; wordt vervolgens een tussenvonnis gewezen, dan kan de vordering daarna weer wel worden ingesteld, totdat opnieuw een dag voor vonnis is bepaald.”
  
  
     Arnhem-Leeuwarden Court of Appeal 11 April 2017, ECLI:NL:GHARL:2017:3095, para. 2.1
  
  
     Kamerstukken II 2014/15, 34 059, nr. 3, p. 98: ”De wijzigingen in artikel 218 zijn van terminologische aard. Omdat de term ‘conclusie’ niet meer alle stukken zoals conclusie van eis, conclusie van antwoord en alle volgende conclusies dekt, is in artikel 218 aangegeven dat de vordering van voeging of tussenkomst genomen kan worden totdat de laatste standpuntuitwisseling heeft plaatsgevonden. Dat kan dus al zijn bij het indienen van het verweerschrift en bij toepassing van de mogelijkheid van artikel 30o, eerste lid, onder b, [partijen mogen “schriftelijk reageren op elkaars standpunten”; added by the Court] kan dat zijn bij de laatste keer dat partijen van de rechter gelegenheid krijgen schriftelijk hun standpunten uit te wisselen. Hiermee wordt beoogd de huidige praktijk ongewijzigd te laten.”
  
  
     Supreme Court, 23 March 2014, ECLI:NL:HR:2014:768, para. 4.2.2