Partial dispute procedure in personal injury cases: when and how?

Personal injury is a traumatic event. In addition to the physical and emotional suffering, financial concerns often arise. It is therefore crucial that the compensation is determined correctly and completely. In most cases, this process takes place through negotiations between the victim (or their lawyer) and the liable party (usually an insurer). However, parties do not always reach an agreement. Sometimes there is a dispute about specific components of the damage or liability. In such situations, a partial dispute procedure for personal injury can provide a solution. At Arslan & Arslan Advocaten, we understand the complexity of personal injury cases and are happy to guide you through this process.

The partial dispute procedure is a relatively fast and efficient legal procedure specifically designed to resolve bottlenecks in personal injury cases without the need for a full trial before the court. It is a tool to guarantee progress in a damage settlement when parties disagree on one or more specific questions. Think of disputes about the causality of certain complaints, the extent of specific damage items, or even the liability itself. Instead of waiting until the entire dispute is resolved—which can take years—these specific questions can be submitted to the court via a partial dispute. The judge then issues a binding decision on this specific matter, after which negotiations about the rest of the damage settlement can be resumed or even definitively concluded.

The great advantage of the partial dispute procedure is that it can break a deadlock. Without this option, victims would often have to wait a long time for clarity and the final compensation, with all the financial and emotional consequences that entails. By submitting targeted partial questions to the judge, clarity is created more quickly and the damage settlement can proceed more efficiently. This is not only in the interest of the victim but also in the interest of the liable party, as prolonged cases often involve higher costs. In the following paragraphs, we will go deeper into when and how this procedure can be used, and what the advantages and pitfalls are.

What is a partial dispute procedure?

The partial dispute procedure is a specific legal procedure introduced in Dutch civil law to assist victims of personal injury when they have reached a deadlock with the liable party (usually their insurer) over specific components of the damage settlement. The legal basis for this procedure can be found in Article 1019w of the Dutch Code of Civil Procedure (Rv). This article was introduced in 2010 with a clear purpose: to break the stalemate that often arises in out-of-court settlements of personal injury cases, without having to bring the entire damage case before the court immediately.

The Purpose of the Partial Dispute Procedure

The primary purpose of the partial dispute procedure is to obtain a binding ruling from the court on one or more specific points of dispute that block the further settlement of the personal injury case. Think of disputes about:

• The liability of the opposing party.
• The causality between the accident and the personal injury (for example, whether certain complaints were caused by the accident or not).
• The extent of certain damage items (for example, the necessity of certain medical treatments or adjustments to the home).
• The possibility of conducting a medical expert examination.
• The amount of the advance payment on the compensation.
• The jurisdiction of the subdistrict court or district court.

Without a partial dispute procedure, parties would be forced either to stop negotiations, which means the victim’s damage is not compensated, or to bring the entire personal injury case before the court. The latter is costly and time-consuming and often unnecessary if only one or a few points dominate the discussion.

Breaking a Deadlock

The partial dispute procedure is particularly suitable for breaking a deadlock in negotiations. In practice, it often happens that an insurer and a victim agree on most aspects of the damage settlement but get stuck on one crucial point. For example, the insurer may dispute liability, while the victim is convinced that liability is established. Or the insurer refuses to pay a certain advance, while the victim urgently needs financial resources for medical costs or loss of income.

By submitting the dispute point to the court through a partial dispute procedure, a binding decision is obtained. This decision creates clarity and forces parties to continue negotiations based on the court’s ruling. The ruling in a partial dispute is, in principle, binding for the parties in the further out-of-court settlement of the damage. This clears the way for an amicable settlement of the remaining damage items without the need for a full trial. This saves time, costs, and emotional burden for all parties involved and contributes to a more efficient settlement of personal injury cases.

It is important to emphasize that the partial dispute procedure is not intended for the final determination of the total compensation. It is purely about resolving bottlenecks that hinder the progress of the out-of-court settlement. Once the court has ruled on the dispute point, negotiations on the remaining damage items can be resumed, often with renewed momentum and a greater chance of an amicable settlement.

When do you use a partial dispute procedure?

The partial dispute procedure is a powerful legal tool, but it is not a procedure to be used lightly. It is specifically designed to quickly and efficiently resolve bottlenecks in a personal injury case without having to bring the entire case before the court immediately. But when is this exactly the right path to take? Below we discuss the most common situations in which a partial dispute procedure can provide a solution.

Disputes about liability

One of the most common reasons to start a partial dispute procedure is when there is disagreement about liability for the accident. The insurer of the opposing party may refuse to acknowledge liability or only accept part of it. This can lead to a deadlock in negotiations. A judge can issue a binding ruling on the liability question in a partial dispute procedure, clearing the way for further settlement of the damage.

• Example: You were hit at a roundabout. The opposing party’s insurer claims you did not yield, while you believe the opposing party was speeding and cut you off. A partial dispute can clarify who is liable for the accident.

Determining contributory negligence

Sometimes liability is acknowledged, but the insurer claims you are (partly) at fault for causing the damage. This means you would have to bear part of your own damage, which can significantly affect the amount of your final compensation. The percentage of contributory negligence is often a subject of prolonged discussion.

• Example: You were hit by a car as a cyclist. The driver admits liability but claims you were partly responsible for the severity of your head injury because you were not wearing a helmet. A partial dispute can ask the judge to determine the percentage of contributory negligence, for example, 10% or 25%.

Causality issues

Another complex issue is causality, i.e., the connection between the accident and the damage you suffered. The insurer may dispute that certain complaints or limitations are directly caused by the accident and attribute them to pre-existing conditions or other causes. This can seriously delay the settlement of the case.

• Example: After a whiplash accident, you experience persistent neck and back complaints. The insurer claims you already suffered from osteoarthritis before the accident and that the complaints were not (fully) caused by the accident. A partial dispute can ask the judge to assess to what extent there is a causal link between the accident and your current complaints.

Amount of an advance payment

Personal injury cases can last for years. Meanwhile, the damage accumulates, for example, due to medical costs, loss of income, or home adaptations. You are entitled to advances to cover these costs. If the insurer refuses to pay a reasonable advance or there is a dispute about the amount, a partial dispute can provide a solution. The judge can then issue a binding decision on the amount of the advance to be paid.

• Example: You have become long-term incapacitated due to the accident, and your income has drastically decreased. The insurer pays an advance, but it is insufficient to cover your fixed expenses. Through a partial dispute, you can ask the judge to grant a higher advance so that you do not get into financial trouble.

Other bottlenecks

Besides the above situations, a partial dispute procedure can also be used for other specific bottlenecks that hinder the progress of the personal injury case. Think of disputes about the necessity of certain medical treatments, the provision of household help, or compensation for study delay. As long as it concerns a defined point of dispute that blocks the overall settlement, a partial dispute can be an efficient solution.

How does a partial dispute procedure proceed?

A partial dispute procedure is a specific legal route taken to break a deadlock in the out-of-court personal injury settlement. It is not a full trial but focuses on one or more bottlenecks. Below we describe the steps you can expect when you or your personal injury lawyer start a partial dispute procedure.

1. Drafting the petition

The procedure begins with drafting a detailed petition. This document is crucial as it forms the basis of the procedure. Your lawyer (or we, if you engage us) will carefully formulate this petition. The petition contains:

• Details of the parties involved: Your name and address, and those of the liable party (usually the insurer).
• A clear description of the accident and the personal injury: What happened, when, where, and what consequences it had for you.
• The legal basis of the claim: Why the other party is liable for your damage. This is supported by relevant legal articles and case law.
• The specific questions or points of dispute: This is the core of the partial dispute. Which concrete questions do you want the judge to answer? Think of questions about liability, the extent of certain damage items (e.g., loss of earning capacity or pain and suffering), or the causality between the accident and your complaints.
• The substantiation of the questions: Each point of dispute must be supported by evidence. This can include medical reports, expert reports, payslips, valuation reports, witness statements, or other relevant documents.
• The request to the judge: What do you want the judge to decide? For example: “to declare that [insurer] is liable for the damage suffered and to be suffered by [your name] as a result of the accident on [date].”

The petition is then submitted, together with all relevant attachments, to the competent court (the subdistrict court or the civil court, depending on the nature of the dispute and the amount claimed). This usually happens via a digital portal.

2. The insurer’s statement of defense

After the petition is submitted and received by the court, the court will send a copy to the opposing party (the insurer). The insurer then has the opportunity to submit a statement of defense within a certain period, usually six to eight weeks. In this statement, the insurer will respond to the claims and requests made in your petition. The insurer can:

• Dispute liability: If this is still a point of contention.
• Dispute the extent of the damage: For example, by denying causality between the accident and certain complaints or damage items, or by disputing the amount claimed.
• Make their own claims: For example, about your own share in the accident (contributory negligence) or about the limitations of your injury.
• Submit new evidence: To support their position.

The statement of defense is often a well-prepared legal document drafted by the insurer’s lawyer. Your lawyer will carefully study this statement and advise you on its implications.

3. The oral hearing (session)

After the statement of defense is submitted, the court sets a date for an oral hearing, also called a session. This is an important phase in the procedure. During the hearing, both parties (or their lawyers) appear before the judge. The purpose of the oral hearing is:

• Further explanation: Both parties have the opportunity to explain their positions orally and answer any questions from the judge. This is often an interactive process.
• Questions from the judge: The judge will ask targeted questions to better understand the case and clarify any uncertainties.
• Evidence presentation: If necessary, parties can submit additional evidence or call witnesses during the hearing (although the latter is less common in partial disputes).
• Settlement attempt: The judge will often try to encourage parties to reach a settlement. A settlement can significantly shorten the procedure and save further costs. If a settlement is reached, it is recorded in the minutes and the case is thereby concluded.

If you attend the hearing yourself (which we often advise), you get the chance to personally tell your story to the judge. This can be a valuable aspect, as the judge then gains a more direct impression of the impact of the injury on your life.

4. The judge’s decision

If no settlement is reached during the oral hearing, the judge will retire to make a decision. This decision is recorded in a so-called ‘order’ (beschikking). The order is usually sent to the parties several weeks to months after the hearing.

In the order, the judge will provide a reasoned answer to the specific questions posed in the petition. This may mean that the judge:

• Determines liability: Or rejects it.
• Confirms or denies causality: Between the accident and certain complaints or damage items.
• Provides guidelines for calculating certain damage items: For example, by indicating which assumptions should be used when calculating loss of earning capacity.
• Determines the reasonableness of certain costs: Such as costs for medical treatments or household help.

The order is binding on both parties. This means the insurer must comply with the judge’s ruling in the further settlement of the personal injury case. If one of the parties disagrees with the order, there is in some cases the possibility to appeal to the court of appeal, although this is less common in partial disputes primarily intended to break deadlocks.

After the order, the out-of-court settlement of the personal injury case can often be resumed and brought to a conclusion based on the court’s ruling.

What are the costs of a partial dispute procedure?

A common concern among personal injury victims is the question of the costs of legal procedures. The good news is that the partial dispute procedure, unlike many other judicial procedures, has a specific rule for the allocation of procedural costs. This rule is laid down in Article 1019aa of the Dutch Code of Civil Procedure (Rv) and was introduced to relieve personal injury victims.

Article 1019aa Rv: The cost rule in the partial dispute

Article 1019aa Rv stipulates that the costs of the partial dispute procedure, in principle, are borne by the liable party. This is a crucial provision that makes it more attractive for victims to start this procedure when out-of-court negotiations stall. The legislator wanted to prevent victims, who often already face financial and physical setbacks, from also having to bear the legal costs of defending their rights.

When does the liable party pay the costs?

The main rule is that the liable party, in practice usually the insurer, bears the costs. This also applies if the victim is not fully successful on all points of the partial dispute. The threshold for this is relatively low: as long as the procedure was not started unnecessarily or manifestly unfounded, the costs will be charged to the liable party. The judge assesses whether it was reasonable to start the procedure, considering the state of negotiations and the necessity of obtaining a court ruling on the specific dispute point.

Case law has drawn clear lines over the years. A procedure is not considered unnecessary when:

• The liable party takes a position that proves untenable.
• A deadlock has arisen in negotiations that can only be broken by a court decision.
• The liable party refuses to cooperate in a reasonable damage settlement.

Even if the judge does not fully follow the victim’s position but acknowledges that there was a legitimate reason to start the procedure, the costs must be reimbursed by the liable party. This is an important difference from regular civil procedures, where the losing party usually pays the procedural costs.

Which costs are reimbursed?

The reimbursement of costs generally includes the reasonable and necessary costs of legal assistance, such as attorney fees. It also covers court fees and any expert costs incurred in connection with the partial dispute. However, it is important to emphasize that the costs must be reasonable. A lawyer must specify the costs transparently and comprehensibly. The judge can intervene if the declared costs are disproportionately high.

Strategic importance of the cost rule

The cost rule of Article 1019aa Rv has strategic importance. It prevents insurers from needlessly delaying negotiations or taking unreasonable positions, knowing that the victim will be reluctant to go to court because of the costs. The possibility to start a partial dispute without financial risk forces insurers to negotiate more seriously and constructively. This contributes to a more efficient settlement of personal injury cases and ensures that victims have easier access to the right to compensation.

At Arslan & Arslan Advocaten, we guide you through the entire process and ensure that the costs of the partial dispute procedure are properly recovered from the liable party. You therefore do not have to worry about unexpected financial burdens.

Frequently asked questions about the partial dispute procedure

The partial dispute procedure is a useful tool in personal injury cases but often raises many questions. Below we answer the most common questions so that you get a better idea of what to expect.

How long does a partial dispute procedure usually take?

The duration of a partial dispute procedure depends on various factors and can vary. On average, you should expect a period of several months to half a year. This includes the time needed to submit the petition, the response from the opposing party, a possible oral hearing at the court, and the final ruling by the judge. Complex cases with many points of dispute or additional evidence may take longer. It is important to realize that the court aims for a swift resolution, but carefulness is paramount. We, as Arslan & Arslan Advocaten, will do everything possible to make the process as efficient as possible and keep you informed throughout the entire process.

Are there risks associated with starting a partial dispute procedure?

Yes, although the partial dispute procedure offers many advantages, there are also risks involved. The main risk is that the judge rejects your request. This may mean that you do not recover the procedural costs, including your lawyer’s fees and court fees, from the opposing party. Moreover, a negative outcome can affect your negotiating position in the rest of the personal injury case, although this is not always the case. Another risk is that the procedure causes delays if the judge decides to request, for example, an expert report, which takes extra time. Before we start a partial dispute procedure, we always carefully weigh the chances and risks and discuss these extensively with you. Transparency about possible outcomes is essential.

Is a lawyer mandatory in a partial dispute procedure?

Yes, representation by a lawyer is mandatory in a partial dispute procedure. This is a procedure conducted before the court, and in the Netherlands, legal representation by a lawyer is legally required for court procedures. A lawyer is specialized in drafting legally correct petitions, speaking during hearings, and correctly interpreting laws and regulations. Especially in personal injury cases, where complex medical and legal aspects often play a role, the expertise of a specialized personal injury lawyer is crucial. Arslan & Arslan Advocaten has extensive experience with conducting partial dispute procedures and is happy to assist you.

What are the costs of a partial dispute procedure and who pays them?

The costs of a partial dispute procedure mainly consist of court fees (a mandatory contribution to the court) and lawyer’s fees. In most personal injury cases, if the liability of the opposing party is established, the principle applies that the reasonable costs of legal assistance (including those for a partial dispute procedure) are borne by the liable party. This means that, in principle, you do not have to pay lawyer’s fees. However, if the judge rejects your request in the partial dispute, it may happen that the costs remain your responsibility. We will always discuss the cost aspects with you in advance and inform you about the possibilities for reimbursement. Our firm often works on a no-cure-no-pay basis for lawyer’s fees, meaning you only pay if a result is achieved.

The partial dispute procedure is a valuable instrument within personal injury law, offering victims the possibility to quickly and efficiently resolve specific bottlenecks in a personal injury case. It prevents a lengthy and costly full trial while still providing the certainty of a court ruling on essential aspects such as liability or the extent of certain damage items. However, correctly navigating this procedure requires specialist knowledge and experience. The complexity of personal injury law and the specific requirements of the partial dispute procedure make the assistance of an expert personal injury lawyer indispensable.

At Arslan & Arslan Advocaten, we understand the impact of personal injury on your life. We support you with clear advice and decisive representation, from submitting the petition to the hearing and the final order. Our goal is to relieve you and ensure you receive the compensation you are entitled to so that you can focus on your recovery.

Contact Arslan & Arslan Advocaten without obligation

Have you suffered personal injury and are you considering a partial dispute procedure, or do you have questions about your rights and options? Do not hesitate. The personal injury specialists at Arslan & Arslan Advocaten are ready to provide you with personal guidance and legal expertise. Contact us today without obligation at 020 – 662 1222 or send an email to [email protected]. We are happy to discuss your specific situation and advise you on the best approach for your personal injury case. Your interests are our priority.

Read also:

• Partial Dispute Procedure for Personal Injury: an in-depth guide
• Calculating Personal Injury after a Traffic Accident: Overview of Damage Items
• Pain and Suffering Compensation after a Traffic Accident: Amounts and Examples

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