It is quite a long time (July 17, 2008 to be precise) since I wrote on this blog (here) about the so called indicative rates (procedural costs) for IP (infringement) proceedings (first instance), applicable since August 1, 2008, in the Netherlands.
With a letter of July 11, 2014 from the Chair (Ulbe van Houten, Judge in the District Court of Overijssel) of the ‘Landelijk vakinhoud overleg civiel en kanton’ (National Consultations on Civil-Law and Subdistrict Matters of the District Courts) the Netherlands Bar Association (NBA) received the new version of the so called Indicative Rates in IP-matters. These Indicate Rates can be applied as from September 1, 2014 and are applicable to proceedings in first instance.
The Indicative Rates have apparently been evaluated by the IP Expert Group (N.N. as far as I know) of the National Consultations. As part of the evaluation the National Consultations have requested the advice of the DBA’s Advisory Committee on Intellectual Property (chair: Willem Hoyng; members: Tobias Cohen Jehoram, Simon Dack, Marleen van den Horst, Niels Mulder, Otto Swens, Carreen Shannon, Dirk Visser and Hemke de Weijs). The Advisory Committee’s advice to raise the Indicative Rates with 10% is not followed by the National Consultations: the experience that the procedural costs claimed exceed the Indicative Rates is only recognised by one District Court (which one is not disclosed in the Chair’s letter). According to the IP Expert Group this is not enough for a raise of the Indicative Rates which apply throughout the Netherlands.
However the evaluation has according to the Chair been seized to revise the explanation to the Indicative Rates on certain points taking into account the advice of the Advisory Committee to a large extent.
It would have been easy for practice and users if the revisions would have been indicated (by marking for example) in the text of the explanation, which unfortunetaly has not been done, so that it is necessary to have both texts available to see what exactly is revised. As far as I can see the revisions are minimalistic. I discovered the following changes:
1. The reference to the advice of Advocate General Verkade at the Dutch Supreme Court (the Endstra Tapes case), dated January 18, 2008 (LJN BC2153) was deleted as a note from the preface of the explanation to the Indicative Rates. The reference was made to sunbstantiate that the case law with regard to article 1019h Dutch Civil Procedure Act (implementation of article 14 of the Enforcement Directive) is developing. That being said I do not understand why the reference needed to be deleted, since case law with regard to article 1019h Dutch Civil Procedure Act is still developing.
2. In the new version’s preface the text refers to September 1, 2014 (instead of October 11, 2010), being the date on which the Indicative Rates version will change.
3. Whereas the earlier version of the Indicative Rates mentioned as a starting point that the Indicative Rates also applied in proceedings only concerning the validity of an IP right or only a declaratory decision for (non-)infringement, the new Indicative Rates do not mention this as a starting point. Such matters are therefore as a starting point not covered by the new Indicative Rates. Please note that the Indicative Rates are not applicable to patent cases.
4. Decisions with regard to costs orders concerning procedural issues shall in principle be adjourned until the decision in the main action. This is new and formed not part of the explanation to the earlier version of the Indicative Rates.
5. That the Indicative Rates are exclusive disbursements is not underlined in the new explanation (but they remain exclusive, those disbursements).
6. The wording ‘except if’ is changed into ‘unless’ in the sentence ‘Unless the parties have reached an agreement with regard to the amount of the procedural costs’; an a, b and c have been added with regard to the points of the detailed statement concerning the procedural costs which has to be filed at the Court. When do we need to file this statement? New: ‘Unless the Judge has decided otherwise, the statement regarding procedural costs has to be filed within the same term which applies for the filing of the last exhibits. Until at the latest 24 hours before the hearing this statement can be supplemented with an overview of the costs made since then.’
7. It is not stressed any longer by underling that the Indicative Rates give an indication of the maximum amount of procedural costs which as a general rule can be regarded as reasonable and proportionate.
The new version of the Indicative Rates can be found here (in Dutch) and in my 2008 post (see above).