Cost and Fee Allocation in the Netherlands
With regard to cost and fee allocation in the Netherlands, the starting point is that the loser pays all costs (Art. 237 para. 1, first sentence, Code of Civil Procedure.), a principle considered to be justified on grounds of procedural risk and policy (H.J. Snijders, M. Ynzonides, and G.J. Meijer, Nederlands burgerlijk procesrecht, 3rd. edition, no. 117 (Deventer: Kluwer, 2002).). This principle also applies in cases where the losing party was not assisted by an attorney or when he or she was provided with legal aid on behalf of the state. However, in normal cases, the fees of the other party’s attorney(s) will be compensated only in accordance with the so-called liquidated tariff (C. Ingelse, L.J.H. Mölenberg, Het tarief voor te liquideren kosten: richtlijn of standaard, Advocatenblad 1998, pp. 1141–1145), which discourages a party from incurring excessive costs. The application of this tariff, however, also bears negative consequences, for it implies that the winning party always incurs some costs, even if the claim was not or should not have been seriously contested by the other party.