10.2.8 The inquiry procedure as a stepping stone to liability proceedings

A possible reason for financing the costs of investigation in inquiry proceedings is that the investigation and the judgment on mismanagement can be used as leverage in subsequent liability proceedings.

Through the (investigation in) inquiry proceedings, information is gathered which can be used for subsequent liability proceedings. In view of the extensive powers of the investigator (Articles 2:351-352a DCC) and the special method of gathering evidence in the investigation, a fairly complete overview of all documents relevant to the investigation can be obtained. In addition, the investigation can provide information that might otherwise not be obtained (or would be difficult to obtain) (par. 8.3).

There is no room for holding decisions and their underlying considerations in the inquiry procedure to be res judicata in subsequent liability proceedings, as the legal relationships under dispute in the inquiry procedure and those in liability proceedings are not the same (par. 8.4). If an injured party has access to the report of the investigation and is allowed to use it in subsequent liability proceedings (par. 8.5.2), the investigation report and the decisions of the Enterprise Chamber can have probative value in subsequent liability proceedings. Case law by the lower courts shows that the inquiry dossier is actually being used (par. 8.5.6).

Under the circumstances given by the Supreme Court in Laurus, it is also possible to accept an evidentiary presumption in subsequent liability proceedings instituted by the legal person pursuant to Article 2:9 DCC or Article 6:162 DCC (par. 8.6.3). In my opinion, it is irrelevant whether the legal person itself is involved in liability proceedings as a litigant (formele procespartij) and a litigant with legal interest (materiële procespartij), or whether another party starts liability proceedings as a litigant, acting on the basis of a power of attorney or mandate, or as a representative organisation under Article 3:305a DCC. In my opinion, Laurus also applies to the assignee of a directors’ liability claim (par. 8.2). The evidentiary presumption from Laurus is interpreted restrictively or not applied by the lower courts (par. 8.6.5). A possible explanation for this is that the Supreme Court has not mentioned any circumstances under which the civil courts are free to accept the evidentiary presumption. In this respect, it would be logical to include the responsibility of a director or supervisory director for the mismanagement or a wrong policy (par. 8.6.4).

Furthermore, the annulment of decisions by the Enterprise Chamber to grant final discharge can open or smooth the way for the legal person or trustee relying on Article 2:9 DCC to start liability proceedings against directors and supervisory directors (par. 8.7).

An inquiry procedure can also play a role if compensation is sought through alternative means, in settlement negotiations (par. 8.8.2). Furthermore, by establishing mismanagement in the inquiry proceedings, it is possible in a squeeze-out procedure to obtain a premium on the buyout price for the minority shareholder, as the Enterprise Chamber applied in Xeikon (par. 8.8.3). A similar possibility exists for the shareholder who initiates an action for resignation (par. 8.8.4).