ECLI:NL:RBAMS:2023:7593, Rechtbank Amsterdam, 27-11-2023, C/13/730389
Rechtbank Amsterdam — Uitspraak 
Datum: 2023-11-27 00:00:00.000000
Rechtsgebied: Civiel recht

Samenvatting: This judgment concerns a motion raised by DiaMedica seeking permission from the Court to initiate indemnity proceedings against the bailiff in charge of the enforcement of an earlier judgment (pursuant to Article 210 Dutch Code of Civil Procedure, DCCP). DiaMedica objected to the short timetable (one week until the hearing on the motion) set by the Court to deal with this motion. The Court denies the objection. The wishes of the parties were to adhere to the timetable agreed upon from the outset, which included a hearing on the merits on 7 December 2023. Scheduling a hearing on the motion several weeks later would render the discussion on the consequences of the motion for the hearing on the merits moot. The timetable set in these proceedings on the motion was therefore not contrary to the principles of fair trial.
        The Court denies the motion. The requirements of due process outweigh the interest to initiate indemnity proceedings. By raising the motion this late in the proceedings DiaMedica violated its duty to prevent any unreasonable delay (Article 20 (2) DCCP). Futhermore, allowing the motion would result in the main proceedings on the counterclaim to be held concurrently with the indemnity proceedings (Article 215 DCCP), but before different chambers of the Amsterdam District Court and in different languages. The counterclaim proceedings would be in English, as agreed expressly by the parties, but the indemnity proceedings would be in Dutch, as there is no evidence that the bailiff agreed or will agree to proceedings in English.
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        Dit vonnis ziet op een - door DiaMedica opgeworpen - incident tot oproeping in vrijwaring van de deurwaarder die belast was met de tenuitvoerlegging van een tussenvonnis van de NCC (art. 210 Rv). De rechtbank wijst het bezwaar tegen de korte termijnen voor de behandeling van dit incident (een week tot de mondelinge behandeling van het incident) af. Partijen wilden dat de tijdlijn die was afgesproken vanaf het begin, zou worden nageleefd, inclusief het houden van de inhoudelijke zitting  op 7 december 2023. Als de mondelinge behandeling van het incident later zou plaatsvinden, zou dit de discussie tussen partijen over de gevolgen van het incident voor de zitting van 7 december overbodig maken. De termijnen in deze incidentele procedure waren daarom niet in strijd met het beginsel van een eerlijk proces.
        De rechtbank wijst de incidentele vordering af. De beginselen van een goede procesorde wegen zwaarder dan het belang bij het starten van een vrijwaringsprocedure. Door zo laat een incident op te werpen heeft DiaMedica in strijd gehandeld met haar plicht om onredelijke vertraging te voorkomen (art. 20 lid 2 Rv). Bovendien zou het toewijzen van de incidentele vordering ertoe leiden dat de hoofdzaak in vrijwaring gelijk op zou moeten lopen met de vrijwaringsprocedure (art. 115 Rv), maar behandeld zouden moeten worden door verschillende kamers van de rechtbank en in andere talen. De hoofdzaak in reconventie zou in het Engels zijn, zoals overeengekomen tussen partijen, en de vrijwaringprocedure in het Nederlands. Er is namelijk geen bewijs dat de deurwaarder heeft ingestemd of zal instemmen met het houden van de vrijwaringsprocedure in het Engels.

judgment
    AMSTERDAM DISTRICT COURT
    
    
      Netherlands Commercial Court 
      NCC District Court
    
    
    
      Case number: C/13/730389 (NCC 22-018)
    
    
    
      
        Judgment
      
    
    
    
      
        27 November 2023
      
    
    
    
      
        Claimant, and defendant in the counterclaim
      
      
        Claimant on the motion: 
      
        DIAMEDICA THERAPEUTICS, INC.,	
      Minneapolis, Minnesota (United States of America)
      represented by B.F.H. Rumora-Scheltema, lawyer,
    
    
    
      
        Defendant, and claimant in the counterclaim
      
      
        Defendant on the motion:
      
        PHARMACEUTICAL RESEARCH ASSOCIATES GROUP B.V., 
      Groningen (the Netherlands),
      represented by A. Attaïbi, lawyer.
    
    
    
    
      The parties are referred to below as DiaMedica and PRA respectively. They are jointly referred to as the ‘Parties’. The term ‘lawyer’ has the meaning as defined in Article 3.1.1 NCC Rules of Procedure (NCCR).
    
    
  
  
    
      1Procedural history
    
      1.1.
      The proceedings so far are listed in the 21 April 2023 judgment (the ‘Judgment’, publication number ECLI:NL:RBAMS:2023:2540). In the Judgment, the Court ruled on DiaMedica’s claim for revindication of documents and data only.
      
    
    
      1.2.
      The timeline for the remainder of the proceedings was set by the Court in consultation with the Parties on 12 January 2023. It was directed towards completing the written submissions prior to a hearing on the merits which was scheduled to be held on 25 September 2023.
      
    
    
      1.3.
      Upon unanimous request by the Parties, the Court amended the timeline in its 11 July 2023 directions as follows:
      
        
          26 July 2023: DiaMedica to submit its statement providing additional substantiation of its claim for damages
        
        
          20 September 2023: PRA to submit its statement of defence against the claim for damages, including the counterclaims and the grounds for these counterclaims, if any.
        
        
          18 October 2023: DiaMedica to submit its statement of defence in the counterclaims.
        
        
          7 December 2023 at 1 PM: hearing on claim for damages and counterclaim.
        
      
    
    
      1.4.
      DiaMedica submitted its statement supplementing its grounds for claim for damages on 26 July 2023.
      
    
    
      1.5.
      On 14 September 2023, the Court granted a second unanimous request of the Parties for extension of the deadlines for submitting statements:
      
        
          PRA to submit its statement of defence in the claim for damages and its counterclaim on 18 October 2023.
        
        
          DiaMedica to submit its statement of defence against the counterclaim on 15 November 2023. 
        
      
      The hearing date of 7 December 2023 remained unchanged.
      
    
    
      1.6.
      On 18 October 2023, PRA submitted its statement of defence against the claim for damages, including a statement of counterclaim. 
      
    
    
      1.7.
      On 26 October 2023, the Court dismissed DiaMedica’s objection against the size of PRA’s statement and exhibits.
      
    
    
      1.8.
      On 2 November 2023, PRA submitted a brief containing an increase of the counterclaim and additional exhibits.
      
    
    
      1.9.
      On 9 November 2023, the Court instructed DiaMedica to respond to PRA’s brief in its statement of defence against the counterclaim, which was to be submitted on 15 November 2023. 
      
    
    
      1.10.
      On 15 November 2023, DiaMedica submitted a motion for indemnity proceedings pursuant to Article 210 Dutch Code of Civil Procedure (DCCP).
      
    
    
      1.11.
      On 20 November 2023, PRA submitted a statement of defence against DiaMedica’s motion.
      
    
    
      1.12.
      The Court delegated the proceedings on the motion to a delegated single judge. This judge held a videoconference hearing on the motion on 23 November 2023. The lawyers of the Parties argued their cases, submitted pleading notes, and made use of their right to reply and rejoinder.
      
    
    
      1.13.
      Judgment on the motion was set for today.
      
    
  
  
    
      2The motion
    
      2.1.
      DiaMedica seeks to have the bailiff in charge of the enforcement of the Judgment (the ‘Bailiff’) summoned to a hearing to be determined by the Court in order to defend against indemnity proceedings and to continue to proceed with the action, ordering PRA to pay the costs of this motion. In Diamedica’s view, the motion solely affects PRA's counterclaims and does not require postponing the proceedings concerning DiaMedica's claim for damages (the original claim), which is scheduled for a hearing on 7 December 2023. Consequently, a decision in the original claim may be rendered separately from a decision in the counterclaim (pursuant to Article 138 DCCP). DiaMedica requests to be provided with an opportunity to express its views following PRA's defence against the motion.
    
    
      2.2.
      
        PRA does not object to DiaMedica's motion, on the conditions that the Court:
        
          in the claim and counterclaim proceedings
        
        (i) reaffirms the procedural order as set in the Court's directions dated 11 July 2023, and in particular, that the hearing on 7 December 2023 will entail both DiaMedica’s claim as well as PRA's counterclaim;
        
          in the counterclaim proceedings
        
        (ii) determines that DiaMedica has failed to submit a statement of defence in the counterclaim on the proper date as set by the Court (formerly known as 'akte niet dienen'); or alternatively, that DiaMedica’s motion (and in particular Chapters 2 and 3 of that motion) are to be regarded as DiaMedica's statement of defence in the counterclaim, or, alternatively, that DiaMedica is to submit its statement of defence in the counterclaim no later than 28 November 2023 on the pain of loss of right, under the condition that the defence statement does not exceed a maximum number of 15 pages;
        
          in the motion for indemnity proceedings
        
        (iii) orders DiaMedica to pay the costs of the motion proceedings, with statutory interest.
      
      
    
  
  
    
      3Discussion
    On the motion
    
    
      
        Motion timetable contrary to the principle of fair trial?
      
    
    
    
      3.1.
      During the hearing on the motion, DiaMedica stated that its rights in these proceedings on the motion have been insufficiently respected, and that this is a violation of its rights under Article 6 of the European Convention on Human Rights (fair trial). In DiaMedica’s view, the Court did not allow enough time to consider whether or not PRA’s statement of defence in the motion warranted a further reaction, but decided to hold a hearing, and to do so in less than 48 hours. By doing so, the Court did not follow the standard procedure by most courts, and certainly by the Amsterdam District Court of which the NCC is a chamber, that following a motion the other side will have two weeks to respond.
      
    
    
      3.2.
      Under Article 3.4.2 NCCR, the Court sets the time limit for carrying out any acts of process as appropriate to each case, taking into account any wishes the parties may have expressed. From the outset, the wishes of the Parties were to adhere to the timetable set on 12 January 2023, as amended on 11 July 2023. All changes to the timetable since that date have been based on the premise that the date of the hearing (7 December 2023), which would relate to both DiaMedica’s claim for damages as well as to PRAs counterclaim(s), would remain unchanged. This wish - and the fact that both Parties were represented by multiple experienced counsel - prompted the Court to allow PRA less time than usual to submit a statement of defence in the motion, to which PRA did not object. In its statements on the motion, the Parties expressed divergent positions as to the consequences of the decision on the motion for the 7 December 2023 hearing. 
      
    
    
      3.3.
      If the Court were to schedule a hearing on the motion - which DiaMedica requested in its 15 November 2023 cover letter - one or two weeks after the submission of PRA’s defence on the motion, a discussion on these consequences would be moot. The hearing on the motion would in that situation be so close to the 7 December 2023 hearing that the Court would have no other option than to adopt DiaMedica’s position to separate the claim and counterclaim actions under Article 138(2) DCCP, given the situation that the Parties both agree that the hearing on the damages claim for damages should proceed at that date.
      
    
    
      3.4.
      Moreover, in the Court’s opinion, DiaMedica could have prevented the Court from having to set short deadlines by informing the Court and PRA shortly after PRA’s 18 October 2023 statement or PRA’s brief dated 2 November 2023, that it intended to raise a motion for indemnity proceedings. It chose not to do so and to wait until the last possible date for raising such a motion. Since the submission of the statement of defence in the motion, DiaMedica’s experienced counsel had more than three days to discuss its content with its client. As is evident from the 5-page pleading notes submitted prior to the hearing on the motion, this was sufficient time to prepare for the hearing. Especially since DiaMedica at the end of the hearing on the motion did not object to the Court ruling on the motion on 27 November 2023. The Court finds that the timetable set in these proceedings on the motion was not contrary to the principles of fair trial.
      
      
        
          Motion for indemnity proceedings to be granted?
        
      
      
    
    
      3.5.
      If a party takes the position that it has grounds to give notice for a third party to appear in the proceedings as an indemnitor, it must request permission from the Court to serve a writ of summons for indemnity on such third party (Article 210 DCCP). A motion seeking this permission is granted if the claimant in its motion has sufficiently substantiated that the indemnitor is under an obligation - based on its relationship to the claimant on the motion - to bear the adverse consequences of the claimant on the motion losing the main proceedings (Supreme Court 10 April 1992, publication number ECLI:NL:HR:1992:ZC0567). The Court must determine whether the motion fulfils this requirement, even if - such as in this case - the defendant on the motion defers to the judgment of the court.
      
    
    
      3.6.
      
        The Court notes that virtually all counterclaims are directed towards the Court ordering DiaMedica to do something or to prohibit it from doing something. The Court does not see how the Bailiff can be ordered to indemnify DiaMedica for these claims, as the claimed actions and prohibition cannot be performed by the Bailiff, but only by DiaMedica.
        The two claims seeking a declaration by the Court that the execution of the Judgment by DiaMedica was unlawful and constitutes a wrongful act only affect DiaMedica’s position vis-à-vis PRA, and not the Bailiff’s. What remains is the order for DiaMedica to bear PRA’s full legal costs, insofar as this order is based on the alleged unlawful enforcement of the Judgment. Under the current circumstances, the Court finds that the requirements of due process outweigh the interest to initiate indemnity proceedings. The Court will substantiate its decision below.
      
      
    
    
      3.7.
      
        Under Article 20(2) DCCP, the Parties have a duty to each other to prevent any
        unreasonable delay. The Parties carried out this duty by setting a timetable early in the proceedings (in January 2023). It was the wish of both Parties to set a date for a hearing on the merits (dealing with both the original claim and counterclaim) early on. The Court set a preliminary date (25 September 2023) in January 2023 and a final date (7 December 2023) in July 2023. The dates for submitting documents were extended time and again, upon unanimous request by the Parties, but with the common understanding that the hearing date would remain unaltered. 
      
      
    
    
      3.8.
      With its motion DiaMedica now seeks to restrict the 7 December 2023 hearing to the merits of its claim for damages only, and to deal with the counterclaim at a later date, concurrent with the indemnity proceedings. By doing so, it violated its duty to prevent any unreasonable delay. It could have raised the motion shortly after the original counterclaim was submitted (which was also based on the alleged unlawful conduct of the Bailiff, see Chapters XII.3.2. and XII.3.3.2 of PRA’s 18 October 2023 statement) or shortly after the claim was increased (by brief dated 2 November 2023). DiaMedica did neither, but waited until the day it was to respond to the merits of the counterclaim.
      
    
    
      3.9.
      In addition, allowing the motion would result in the main proceedings on the counterclaim to be held concurrently with the indemnity proceedings (Article 215 DCCP), but before different chambers of the Amsterdam District Court and in different languages. The counterclaim proceedings would be in English, as agreed expressly by the Parties, but the indemnity proceedings would be in Dutch, as there is no evidence that the Bailiff agreed or will agree to proceedings in English. DiaMedica states that the Bailiff can be asked to agree to proceedings in English at the start of the indemnity proceedings, but this is incorrect. If a motion for indemnity proceedings is granted, the Court needs to set a court calendar date for the indemnity action and determine the chamber that will deal with this action. Article 2.2.2 of the NCCR also expressly provides that the court will only allow a party to be added to the action for indemnity, where the party to be added “has consented” in writing to English being the language of the proceedings (or where the other parties agree that the entire action will be dealt with in Dutch, which is not the case here). This is why the claimant on the motion needs to present evidence of the indemnifying party’s express consent in the course of these proceedings on the motion. DiaMedica failed to do so. The fact that the Bailiff assisted in these proceedings in English by serving writs since 2022, does not obligate him to agree to indemnity proceedings in English. Moreover, the enforcement writs served by the Bailiff - to which the counterclaims pertain - were drafted in Dutch.
      
    
    
      3.10.
      The conclusion of the above is that the motion will be denied. DiaMedica is unsuccessful in these motion proceedings. Therefore, it will be ordered to pay the costs incurred by PRA, to be estimated on the basis of the rates applicable to motions in NCC cases.
      
      
        
          On the main proceedings
        
      
      
    
    
      3.11.
      The Parties agree that the timetable set in the 11 July 2023 directions, as amended on 14 September 2023, should be upheld as to DiaMedica’s remaining claims in the original action. This means that these claims are to be discussed at the 7 December 2023 hearing.
      
    
    
      3.12.
      The Parties disagree on the timetable for PRA’s counterclaims. 
      
        
          PRA states that DiaMedica should no longer be allowed to submit a statement of defence against the counterclaim, or should do so no later than 28 November 2023 and its statement of defence should not exceed 15 pages. In PRA’s view, the 7 December 2023 hearing is to deal with the counterclaim as well.
        
        
          DiaMedica takes the position that the proceedings on the counterclaim need to be dealt with at a date later than 7 December 2023. DiaMedica must prepare for the 7 December 2023 hearing in which it must respond to PRA’s excessively lengthy defence in the original claim and the counterclaim expert reports PRA submitted at a later time as a result of which it will not be possible to submit a well-considered defence statement in the counterclaim before the hearing.
        
      
      
      
        
          DiaMedica’s right to raise a defence waived?
        
      
      
    
    
      3.13.
      Under Article 209 DCCP, motions are to be decided first and foremost where the motion so requires. A motion for indemnity proceedings is an exception to this rule and is always to be decided upon prior to a judgment on the merits. This follows from Article 210(3) DCCP. The motion was raised prior to any defences on the merits of the counterclaim. Therefore, by only raising a motion on the date set for the submission of its defences on the merits, DiaMedica’s right to raise these defences is not waived (in Dutch: ‘akte niet-dienen wordt niet verleend’).
      
    
    
      3.14.
      This means that a new time limit must be set for DiaMedica to submit its statement of defence against the counterclaim. As the Court ruled under para. 3.7 above, DiaMedica violated its duty to prevent unreasonable delay by waiting to raise its motion until the date it was to respond to the merits of the counterclaim. DiaMedica must bear the consequences of its own actions. The Court rules that 4 December 2023 at 10 AM shall be the new time limit for submitting a statement of defence on the counterclaim. In the Court’s opinion, this allows DiaMedica’s experienced lawyers sufficient time to prepare this statement, especially given the fact that (i) DiaMedica will have had more than six weeks since the statement of counterclaim (18 October 2023), (ii) the additional counterclaims introduced on 2 November 2023 are not factually or legally complicated, and (iii) DiaMedica already stated its position regarding these additional counterclaims in Chapter 2 of its motion for indemnity proceedings, and submitted exhibits in support of its position.
      
    
    
      3.15.
      As to PRA’s request to set a maximum number of pages for DiaMedica’s statement, the Court rules as follows. As a general principle the Court is hesitant to restrict parties in their rights to submit their arguments in support of their claims and/or defences. In view thereof, the Court is also hesitant to restrict DiaMedica in the length of its defence against PRA’s counterclaim. However, given the short period between 4 and 7 December 2023, the Court suggests that DiaMedica restrict itself in the length of its defence, as at the hearing PRA could object to the length of the defence and it is possible that the Court would allow such objection.
      
      
      
      
      
      
      
      
    
  
  
    
      4Decisions
    THE COURT:
    
    
      
        on the motion
      
    
    
    
      4.1.
      denies DiaMedica’s motion for indemnity proceedings,
      
    
    
      4.2.
      orders DiaMedica to pay the costs of the proceedings, quantified up to this judgment at EUR 4,000, with the provision that if these costs are not paid within fourteen days after the date of this judgment, statutory interest will be due from the fifteenth day after the date of the judgment,
      
      
        
          on the counterclaim
        
      
      
    
    
      4.3.
      directs DiaMedica to submit its statement of defence against the counterclaim on 4 December 2023 at 10 AM,
      
      
        
          on the original claim and counterclaim
        
      
      
    
    
      4.4.
      
        reaffirms the procedural order as set in the Court's directions dated 11 July 2023,
        and in particular, that the hearing on 7 December 2023 will concern both the 
        claim for damages as well as the counterclaim,
      
      
    
    
      4.5.
      reassigns the proceedings to the full panel of three judges.
      
      
      
        Done by C.W.D. Bom, Judge, assisted by W.A. Visser, Clerk of the court. 
        Issued in public on 27 November 2023.
      
      
      
      
        
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