(Un)bearable passage of time for tort claims

Each year in the week after Easter the Annual Conference on European Tort Law provides the opportunity to discover the most significant tort law developments from across Europe. This conference is organized by the European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law (ETL). Experts from 30 jurisdictions present selected highlights from their contributions to the European Tort Law Yearbook, an annual volume which provides a comprehensive overview of legislative and judicial developments in tort law throughout Europe during the preceding year. UCALL members Anne Keirse and Emanuel van Dongen represent the Netherlands. At the 23th Annual Conference on European Tort Law, held April 4-5, 2024 in Vienna, Anne Keirse addressed the ongoing developments of prescription in Dutch tort law and discussed the criticized Supreme Court case Land grabbing II. This blog gives an insight to this contribution and shows that the Dutch Supreme Court does not shy away from taking an unique legal standpoint in Europe.

Since the turn of the century the Dutch Supreme court delivers yearly two or three compelling decisions regarding the rules on prescription of tort claims. Prescription is the legal defence that bars civil actions on a claim after the expiry of a certain amount of time. Due to these ongoing developments in case law the rules and limits of the legal institution of prescription are rapidly changing. Seeing that the doctrine of prescription aims to serve legal certainty, one may consider this as striking.

An overview firstly shows a flexible interpretation and relativisation of the rules on prescription in Dutch tort law. Over the years prescription is getting less and less strict, making more belated claims enforceable. Justice in individual cases predominates over legal certainty. Secondly, a comparative overview brings to light that Dutch law holds a much milder prescription regime than most other jurisdictions. Abroad, plaintiffs are more likely to be prevented from enforcing tort claims against the defendants because a specific period of time has elapsed, than they are in our country. A recent study of the European Group on Tort Law shows that the effects of the passage of time on the enforceability of tort claims differ strongly across Europe (I. Gilead & B. Askeland (eds.), Prescription in Tort Law). We observe a wide range of approaches, from rather strict and rigid to mild and flexible. The Netherlands is without a doubt to be placed at the latter end of the spectrum, and the recent  developments in case law seem to make the Netherlands even more of an outliner.  

An overview of the prescription regime

A full overview of the Dutch prescription regime can be found in the aforementioned comparative study, and in the Yearbooks European Tort Law. But for the purposes of this blogpost, the regime boils down to the following rules, to be found in article 3:310 of the Dutch Civil Code and case law interpreting this statute. A right of action to sue for damages is prescribed on the expiry of 5 years after the plaintiff becomes aware of both the damage and the identity of the tortfeasor; and in any event, on the expiry of 20 years following the event which caused the damage. In other words, Dutch law distinguishes a subjective period of 5 years, starting with certain knowledge, and an objective period of 20 years, starting at the time of the tort. In cases of pollution or toxic exposure the objective period is extended to 30 years. In cases resulting in injury or death, caused after 1 February 2004, there is no objective prescription. Claims for damage caused by injury or death only prescribe 5 years after the damage and the identity of the tortfeasor became known to the plaintiff. If at that moment the plaintiff is still a minor the right of action is prescribed only on the expiry of 5 years after his 18^th birthday. In case the damage is caused by a criminal offence the claim does not prescribe , provided the right to prosecute has not lapsed as a result of prescription in criminal law. This can be indefinite for certain severe crimes, such as manslaughter and rape.

While these 5, 20 and 30 year timelines seem clear and strict, in practice they can be stretched. It has been repeatedly established in case law that under certain circumstances both the subjective period and the objective period can be set aside, if the principles of reasonableness and fairness so require. Furthermore, interpreting the statute of limitation in light of the principles of reasonableness and fairness, the Dutch Supreme court has ruled that the subjective prescription period only starts running after the plaintiff is actually able to file a claim for damages. This will be the case if the plaintiff has obtained sufficient certainty – which does not have to be absolute certainty – that damage was caused by inadequate or tortious actions of a known party. The answer to the question at what time the plaintiff has obtained sufficient  insights and is therefore truly able to file a claim depends on the relevant circumstances of the case.

Based on the above, the Dutch law of prescription summarized: the decisive point in time is the moment plaintiff should have acted. From the moment that it could be expected from the plaintiff to file a claim onwards, the clock on the prescription period starts ticking. As long as plaintiffs are unaware of one or more elements of their alleged cause of action, they are not truly able to file a claim and their claims will not be time-barred. And thus would be belated claims may still be awarded.

In general, these developments and this relativisation of prescription are perceived as improvements and have been applauded by Dutch practitioners and legal scholars. So far so good. However, one of the developments brought by the Dutch Supreme Court faces severe criticism and was in fact asked to reconsider one of this new lines.

Prescription and Land Grabbing II

And this brings us to the case highlighted this year at the conference in Vienna, the case Land grabbing II. The stake was to challenge Land grabbing I but it ended in a confirmation of Land grabbing I. Land grabbing I was a groundbreaking and unexpected Supreme Court decision, presented in the form of an obiter dictum. We discussed it at the Annual Conference on European Tort Law in 2018 and dedicated a UCALL blog to this case. Land grabbing I offered an helping hand to municipalities who have to deal with residents who take possession of municipal land in bad faith and become the owners thereof as a result of prescription. Up until then, it was widely assumed that a liability procedure based on tort against a landgrabber would be time-barred at the same time as the claim for restitution of the land and thus after 20 years following the grabbing of the land.

But no. It turns out that, after losing ownership of the property and running out of the prescription period, the legal race is not over yet. For the Supreme Court found that 20 years after the grabbing of the property, a new claim can emerge: a tort claim with a new prescription period, lasting a minimum of 5 years and a maximum of 20 years. He who takes something into possession and holds it, knowing that another person rightfully owns it, is acting unlawfully towards this other person – the (previous) owner. This previous owner who has lost his property due to prescription, can claim damages from the possessor, being the new owner. And since he can ask for compensation in kind, the transfer of the property can be ordered and the property has to be returned. For this claim a new prescription period starts running:  5 years following the awareness of the loss of ownership or 20 years after the loss of ownership (and thus adding up to a maximum of 40 years after the initial loss of possession).

This unexpected turn was challenged in Land grabbing II. This case concerns two neighbors. A neighbor had planted a conifer hedge on his neighbors ground and had thus taken some land into possession, to be more precise 46 square meters. After 20 years this landgrabber became the owner of this 46 square meters. But then, a few years later, his neighbor filed a claim against him, not long after he had discovered the true borderline of demarcation, stating a tort was committed. And it was indeed decided that the landgrabber had to put the previous owner in the position he would have been in without the unlawful possession. And thus the strip of land was returned.

The Supreme Court’s view

This decision was challenged before the Supreme Court. The ruling was obviously fully in line with Land Grabbing I, but the Supreme Court was asked to reconsider this line. The most far reaching complaint in cassation entails that the tournure of the Supreme Court in Land Grabbing I was not well thought through, was claimed to be unjust and puts the Netherlands in an unique position. Because in no other country that accepts the shift of ownership due to prescription, it is assumed that the landgrabber is liable in any way. And even the Grand Chamber of the European Court of Human Rights has ruled in the Pye judgement that losing property due to prescription is not in itself an infringement of article 1 First Protocol.

But the Dutch Supreme Court dismissed the complaints and saw no reason to revoke the rule given in Land grabbing I. A further explanation is omitted. Some find this difficult to comprehend. But others have applauded the rulings, pointing out the fairness of the outcome and chastising unlawful land grabbing. We concur with these believers. Sure, the plaintiff has failed to file an action on the claim for restitution of possession during the running of the first term of 20 years. But first of all this was due to the surreptitiously behavior of the land grabber and more importantly the plaintiff was still in time for filing an action on the claim for losing ownership. So besides moral grounds that can be put forward, we acknowledge a legal justification to support the outcome by distinguishing 2 tort claims, one reclaiming possession and another reclaiming ownership, each of them giving rise to 2 separate prescription periods.

Conclusions

To conclude, the discussed developments illustrate the struggle of finding a good balance between legal certainty, on the one hand, and justice in individual cases, on the other hand. We believe that the current balancing acts of the Dutch Supreme Court in prescription cases strengthens the trust and credibility of the legal system and its fairness, but we do realize that (many) others have another standpoint. And in other European jurisdictions the outcome of belated cases like these would certainly be different. But well isn’t standing alone all about embracing individuality, i.e. bringing justice in individual cases, even if this is at odds with the principle of legal certainty?

This blog was co-authored by prof. dr. Anne Keirse and mr. dr. Emanuel van Dongen. The full extent of their contribution can be found in the most recent volume of the Yearbook of European Tort Law.