Michael Wilson & Partners Ltd. v. Van Doorne N.V.

At a glance

Parties

Michael Wilson & Partners Ltd (Tortola, British Virgin Islands), appellant, v. Van Doorne N.V. (Amsterdam), respondent on appeal

Case no.

Gerechtshof Amsterdam, No. 200.247.883/01 (ECLI:NL:GHAMS:2020:1201); first instance Rechtbank Noord-Holland 6584278 / CV EXPL 18-304

Court

Gerechtshof Amsterdam (Court of Appeal of Amsterdam), civil and tax law division

Forum and rules

Dutch civil appeal; professional liability of a lawyer

Tribunal

G.C. Makkink, G.C.C. Lewin and J.M. de Jongh

Sector

Legal services

Outcome

Appeal dismissed. The judgment ordering MWP to pay Van Doorne's fees was upheld (21 April 2020).

Amount

Fees claimed by Van Doorne: EUR 13,817.47 plus extrajudicial collection costs and statutory commercial interest (awarded at first instance). Appeal costs against MWP: EUR 1,978.00 disbursements, EUR 1,074.00 salary and EUR 157.00 post-judgment costs.

The dispute

Michael Wilson & Partners (MWP), a law firm that offers its services from Kazakhstan among other places, had obtained an English default judgment against a former client, [X], for unpaid fees. It then sought a third-party debt order against Rhodia (UK) Ltd. Rhodia argued that under Dutch law a payment to MWP might not discharge its debt to [X]. MWP instructed the Dutch firm Van Doorne, which issued two witness statements (31 July and 1 August 2013). On 2 August 2013 the English court granted Rhodia's request, citing the risk that the default judgment would not be recognised in the Netherlands, including under the New York Convention. MWP did not pay Van Doorne's invoices of EUR 13,817.47 and defended the fee claim by alleging professional negligence. On appeal it also sought a declaration that Van Doorne was liable for its losses.

Key holdings

1. A counterclaim cannot be brought for the first time on appeal (art. 353(1) Dutch Code of Civil Procedure). The court therefore disregarded MWP's claim for a declaration of liability, which MWP had presented as an increase of its claim. ¶ 3.3
2. The standard is the care expected of a reasonably competent and reasonably acting lawyer. To avoid hindsight bias, the witness statements must be judged without regard to the English court's decision of 2 August 2013. ¶ 3.5
3. MWP said Van Doorne should have relied on arts. 6:34(2) and 6:32 of the Dutch Civil Code, argued that the New York Convention provides a basis for enforcing a foreign arbitral decision in Kazakhstan, and rebutted opposing counsel's letter more forcefully. None of these omissions was a professional error. The additions might have improved precision and persuasiveness, but Van Doorne met the required standard without them. ¶¶ 3.4–3.5
4. Additionally, MWP did not challenge the first-instance finding that it had attached no legal consequence to its negligence defence. Its reliance on partial rescission 'to the extent necessary' was not a sufficiently clear ground of appeal. ¶ 3.6
5. The first-instance judgment was affirmed, and MWP was ordered to pay the costs of the appeal, declared provisionally enforceable. ¶ 3.7; Decision

Procedural history

1. 31 July 2013MWP signs Van Doorne's engagement letter. Van Doorne issues its first witness statement.
2. 1 August 2013Van Doorne issues its second witness statement.
3. 2 August 2013The English court grants Rhodia's request to withdraw the provisional third-party debt order.
4. 20 August – 13 December 2013Van Doorne sends five invoices totalling EUR 13,817.47. MWP leaves them unpaid.
5. 20 June 2018The cantonal judge of the Rechtbank Noord-Holland grants Van Doorne's fee claim.
6. 18 September 2018MWP files its appeal.
7. 21 April 2020The Gerechtshof Amsterdam affirms the judgment and orders MWP to pay the appeal costs.

Tribunal, counsel and experts

Decided by

• G.C. Makkink Judge, Gerechtshof Amsterdam
• G.C.C. Lewin Judge, Gerechtshof Amsterdam
• J.M. de Jongh Judge, Gerechtshof Amsterdam

For the claimant

P.J. de Jong Schouwenburg

For the respondent

I.M.C.A. Reinders Folmer

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Keywords

• professional negligence
• lawyer liability
• legal fees
• third-party debt order
• Rhodia
• New York Convention
• recognition of default judgment
• witness statement
• hindsight bias
• counterclaim on appeal
• art. 353 Rv
• art. 6:34 BW
• discharging payment
• Kazakhstan
• Netherlands

Summary generated with AI from the published documents — refer to the award for the authoritative text.