Case law by Krantz & Polak
A district court ruling that reaffirmed the statutory right to reimbursement of reasonable counter-expertise costs — and drew a sharper line around what insurers can call 'reasonable'.
In 2018 the District Court handed down a ruling in a case in which a policyholder of Interpolis claimed the full reimbursement of his counter-expert. The case was not, in substance, unique — comparable proceedings run continually against almost every major indemnity insurer — but the ruling once again set out clearly what the statutory starting point is. And that starting point, despite repeated judicial confirmation, remains under regular pressure in practice.
After a loss, the insured had engaged his own counter-expert to establish the scale of the damage. Interpolis resisted the expert’s invoice on two fronts. First, the counter-expert’s hourly rate was presented as too high in comparison with what the insurer itself paid its own expert. Second, the total number of hours spent was disputed, on the basis that part of the work would have been superfluous.
The insured argued in response that engaging a counter-expert was a direct consequence of the fact that the insurer itself had come forward with a loss assessment that was too low. Providing that counterweight — and taking the time the file required — cannot be dismissed after the fact as “unnecessary” by the very insurer that triggered the original discussion.
Article 7:959 of the Dutch Civil Code is the central provision. Paragraph 1 states unambiguously that the reasonable costs of establishing the loss are payable by the insurer. Those costs are therefore not a “favour” from the insurer, not a “concession” and not an item that is only reimbursed if the insured prevails on the scale of the loss. They are costs for which the Civil Code provides an independent legal basis, separate from the outcome of the dispute over the loss.
The statute contains one limitation: the costs must be reasonable. That concept of “reasonable” is deliberately open-ended — the legislator intended to enable a judge to weigh in each case whether both the rate and the volume of work were appropriate to what the file required. But the burden of proving that costs are unreasonable lies with the party relying on that argument. In practice: with the insurer.
The court largely sided with the insured, along three lines.
1. A counter-expert’s hourly rate is not a mirror image of the rate an insurer pays internally. Insurance experts typically work on a long-term contract relationship with a single client, with volume agreements and standardisation. A counter-expert engaged for a single file by a single insured does not have such economies of scale, and also bears a fundamentally different process risk. A higher hourly rate is therefore not, in itself, unreasonable.
2. The substance of the work must be assessed against the course of the file. Where a file becomes complex — for example because the insurer keeps asking questions, requests additional documents or breaks the loss down into separate sub-items — that inevitably leads to more hours on the counter-expert’s side. The court weighs in who has caused the additional workload.
3. What is “reasonable” is not determined unilaterally by the insurer. The court observed that the system of article 7:959 of the Dutch Civil Code becomes illusory if the party liable for the loss also decides what the costs of the opposing expert may be. An insurer that systematically values significantly below market rates would, in effect, hollow out the right to counter-expertise.
Interpolis was ordered to pay the bulk of the invoice, with a limited deduction on items the court actually classed as excessive.
Three practical implications follow from this ruling.
For anyone who now has a loss and is wondering whether the costs of an own expert “will actually be reimbursed”: the starting point of the statute is that they will be. Not as a favour but as an independent legal obligation on the insurer.
For anyone who receives a reduction on an invoice from the insurer: that reduction must be substantively reasoned. An unspecified reference to “market rates” is not a valid basis — the insurer must specifically identify which hours would have been unnecessary and which rate would have been unreasonable in the particular case.
For anyone wondering whether it is worth pressing on with litigation: courts are consistent in this area. Those who can properly substantiate their costs — with an itemised time sheet, a traceable engagement letter and an appropriate rate for the work — are in a strong position.
The 2018 Interpolis ruling was no earthquake, but it was a reaffirmation at a moment when insurers were increasingly seeking, via rate-related disputes, to restrict the practical accessibility of counter-expertise. Together with the later Court of The Hague ruling on Achmea (2020), it forms a line in Dutch case law that strengthens the position of the insured: you are entitled to your own expert, and the reasonable costs are payable by your insurer.
A landmark ruling: the Court of Appeal of The Hague held that Achmea may not demand that its policyholders' counter-expert be registered with NIVRE.
A 2017 court ruling made clear that insurers refusing a claim outright on the basis of a suspicion of fraud bear the burden of proof — and that a suspicion alone is not enough.
In 2017 the Minister of Justice and Security made clear that policy conditions cannot override the Dutch Civil Code — a political confirmation of what the statute already provided.
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