Introduction

When you have suffered damage, you naturally want to recover it from the liable party. You need help with that, so you start looking for an expert advocate. A lawyer who will help you assess your damages and negotiate with the liable party. But what does this expert assistance cost?

The law

The law states that the cost of expert assistance is also part of your damages. After all, you would not have needed a lawyer if the damaging event had not happened. This means that the bills your lawyer charges you must be paid by the liable party. However, it is not the case that all work charged must always be reimbursed. The work must be necessary and reasonable. For example, if your lawyer makes endless phone calls to you and charges you for this time, a liable party does not have to reimburse them. This is because the endless phone calls were neither necessary nor reasonable to charge.

The practice

In practice, this means that your lawyer periodically sends an invoice to you and the liable party. The intention is that the liable party – usually an insurer – pays this invoice. Usually, this does not cause any problems. The insurer pays all or most of the invoices. Occasionally, the lawyer’s bills are only fully reimbursed or settled at the end of the personal injury case. If not all work is reimbursed, a lawyer is often willing to write off the remaining bill.

As a victim, you generally don’t notice much of the financial story behind your personal injury case. You see a bill come along periodically, but assume it will be paid directly by the insurer.

Sometimes arguments arise

Usually things go well, but sometimes arguments arise. As a victim, you may have the misfortune of having to deal with an insurer or claims adjuster who is difficult about reimbursing legal fees. Then you run the risk of having to pay your lawyer’s bills yourself, out of your own pocket. This should not be the intention. After all, the law states that reasonable costs of expert assistance must be reimbursed.

As a lawyer, you do your best to handle a case efficiently and expeditiously. It is therefore not nice to end up in a discussion with the insurer about the work charged. Not at all nice for a client, who may then have to pay part of the invoices himself.

To prevent the insurer from failing to reimburse legal fees, your lawyer can file a lawsuit against the insurer. A judge will then have to determine whether the insurer should reimburse all or part of the work charged.

Recent case law

Recently, a lawyer filed a case against insurer ASR on behalf of a personal injury victim. What was involved?

The victim had been in a road traffic accident. He was riding his bicycle when he was hit by a motorist who did not give him the right of way. He slid over the bonnet and landed with his hip and head hitting the road hard. At the end of the personal injury case, his personal damages were assessed at €1,250.00.

An amount of €1,943.69 was outstanding in lawyers’ fees. The lawyer had moderated this outstanding amount to €1,650.00. Nevertheless, ASR only wanted to reimburse €504.37. As the lawyer could not reach an agreement with ASR and his client also did not want to pay lawyer’s fees out of his own pocket, proceedings were eventually initiated. In those proceedings, the subdistrict court ruled that €1,794.45 in lawyer’s fees had to be reimbursed. ASR also had to reimburse court costs.

In another case, brought by Elfi Letselschade Advocaat, the parties had to litigate all the way to the Arnhem-Leeuwarden Court of Appeal. What was going on here?

The victim had fallen while at work and sustained injuries. An investigation had been conducted into the circumstances of the accident. The Inspection of the Ministry of Social Affairs and Employment (Inspection SWZ), imposed a fine on the employer as a result of this investigation.

The employer had not admitted liability for the workplace accident. However, the employer had engaged a claims settlement agency to handle the personal injury case. The victim received advance payments and medical examinations were conducted to assess the consequences of the accident.

At some point, however, the employer took issue with the legal fees charged. As its main argument, the employer argued that liability had never been admitted. Since liability was not established, this would mean that there was no legal obligation to reimburse the lawyer’s fees. The subdistrict court agreed with this argument. Fortunately, the court did not.

The court emphasised that a fine had been imposed by the SWZ Inspectorate. Given that a fine had been imposed for violation of the Working Conditions Act, the workplace accident could be considered a (potentially) liability-creating event. It therefore did not matter that the employer had not admitted liability. The court ordered the employer to pay reasonable legal fees.

Do you have a personal injury case yourself?

If you have a personal injury case yourself, contact Elfi Personal Injury Lawyer for an initial exploratory consultation (T: 010 – 205 26 30 | E: info@elfi.nu). As a law firm, we are obliged to properly inform you about the financial picture behind your personal injury case. In the vast majority of cases, you do not have to worry about the lawyer’s fees: they are reimbursed by the liable other party. Should this other party be difficult, there is always the option of litigation. However, it is rare that legal proceedings are necessary for compensation of lawyer’s fees.

The financial story behind your personal injury case

Ms mr. drs. I.L. Madu

Cited rulings:

Central Netherlands District Court dated 28 July 2021

www.letselschademagazine.nl/2021/RBMNE-280721

Arnhem-Leeuwarden Court of Appeal dated 7 September 2021

https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHARL:2021:8510