THE BOTTOM LINE
- Your Fine Print Isn’t Ironclad: Standard terms that drastically shorten the time for a customer to bring a claim can be nullified if that customer is deemed a consumer, even if the underlying dispute is professional in nature.
- Ambiguous Fee Structures are a Liability: Clauses that allow for fee uplifts, such as adding VAT “if and where required,” must be crystal clear. A Dutch court found such a term non-transparent and unenforceable against a consumer.
- The “Consumer” Label Has a Broad Reach: An individual contracting for services—even to recover professional damages—can be classified as a consumer. This triggers a high level of judicial scrutiny on the fairness and transparency of your B2C contracts.
THE DETAILS
This case centered on a dispute between a former notary and litigation funder Liesker Procesfinanciering B.V. The individual had engaged Liesker to fund a successful malpractice lawsuit against his previous lawyer, resulting in a settlement of just over €1 million. However, when it came time to distribute the proceeds, a conflict arose over the final calculation, specifically concerning Liesker’s percentage cut and the addition of VAT. The individual claimed he was short-changed by over €200,000 and took the funder to court to settle the matter.
Liesker’s primary defense was that the claim was invalid because it was filed outside the one-year limitation period stipulated in its general terms and conditions. The District Court of Noord-Holland swiftly dismissed this argument. It determined that the claimant, despite being a former legal professional whose damages related to his career, was acting as a private individual—a consumer—when he signed the funding agreement. Under Dutch and EU consumer law, a term that significantly shortens the statutory limitation period is presumed to be “unreasonably onerous” or unfair. As Liesker failed to provide a compelling justification for this restrictive clause, the court nullified it, allowing the case to proceed on its merits.
The core of the dispute then turned to the fee structure for the appeal stage. The agreement entitled Liesker to 30% of the proceeds, plus an additional amount for VAT “if and for so far as required.” The court found this phrasing to be critically non-transparent. It ruled that the clause was not formulated clearly and comprehensibly, making it impossible for the consumer to foresee the ultimate economic consequences. This lack of transparency created a significant imbalance in the parties’ obligations to the detriment of the consumer. Consequently, the court deemed the VAT uplift clause unfair and voided it, recalculating the payout and ordering Liesker to pay an additional €83,082.86 plus interest to its client.
SOURCE
Rechtbank Noord-Holland
