10.2.3 The defence costs of the investigator

Although the risk of establishing the investigator’s liability in court is low, this does not prevent the investigator from being threatened by liability or from actually being held liable and/or from incurring non-recoverable defence costs. This can make it (more) difficult to find investigators in the future and may put pressure on the effectiveness of the right of inquiry. As a result, investigators can also request to be relieved of their duties. This entails costs and loss of time, either for the legal person or another party financing the costs of investigation or for the investigator. There is also a risk that when faced with (the threat of) liability, the investigator will act in accordance with the wishes of an aggressor (par. 3.2.7).

The investigator’s liability position has improved as a result of the insurance possibilities currently available to the investigator (par. 3.2.8.6). Where appropriate, the Enterprise Chamber has several instruments at its disposal to further improve the liability position of the investigator. For example, the Enterprise Chamber can exert pressure for the withdrawal of a liability claim (par. 3.2.8.2). It can also make use of its power to impose prohibitory injunctions, on pain of a penalty (par. 3.2.8.8) and give guidance to the investigator (par. 3.2.8.9).

The fact that the investigator can be held liable is in itself not problematic. I consider it of greater importance that, in the event of liability (or threat thereof), he will incur defence costs which, in certain circumstances, cannot be reimbursed. This is particularly relevant in case the investigator is appointed when a legal person is in financial distress. In that case, the legal person has no or insufficient means to finance the investigator’s costs of defence (par. 3.3.3).

The investigator’s costs of defence include court fees, costs of legal assistance, costs of insurance, and a few other costs (par. 3.3.2.2). If the investigator is ordered to pay the legal costs of the claimant, these costs should in my opinion not be included in the investigator’s costs of defence (par. 3.3.2.2.3). In my opinion, Article 2:350, paragraph 3, of the Dutch Civil Code (‘DCC’) provides no basis under current law for reimbursement of the costs of defence in disciplinary proceedings. In order to improve the legal position of the investigator, the legislator should remedy this defect (par. 3.3.2.5).

In my opinion, the investigator’s costs of defence are part of the costs of investigation (par. 3.3.2.6). The amount secured for the costs of investigation therefore also serves as security for the costs of defence of the investigator. In par. 2.7.4, I propose that the Enterprise Chamber should be entrusted to manage the amount secured for the costs of investigation, which in my view should also include the investigator’s costs of defence.

In addition, the investigator may seek to secure reimbursement of his defence costs. Liability insurance or legal expenses insurance for the investigator’s costs of defence constitutes an important tool in this respect (par. 3.3.4.3). The premiums due on account of this can also be passed on to the legal person (par. 3.3.2.2.5). However, this does not work in bankruptcy situations. In my opinion, the legal qualification of the investigator’s costs of defence as estate debt (par. 3.3.4.4) or the establishment of a solidarity fund by the Rimari Foundation (par. 3.3.4.6) merits further consideration. The financing of the costs of defence would then continue to be the responsibility of the legal person. An arrangement could also be considered under which the State bears the investigator’s defence costs in bankruptcy situations (par. 3.3.4.5).