This country-specific Q&A provides an overview to competition litigation laws and regulations that may occur in The Netherlands.
This Q&A is part of the global guide to Competition Litigation. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/competition-litigation/
What types of conduct and causes of action can be relied upon as the basis of a competition damages claim?
A person or legal entity may bring claims for compensation for loss caused to it by a breach of national or EU competition laws such as participation in a cartel, agreements to fix prices, limit or control production or markets and abusing a dominant position.
Competition damages claims are generally tortious liability claims, article 6:162 Dutch Civil Code (DCC). In theory, an injured party could also base a claim on e.g. undue payment (article 6:203 DCC), unjust enrichment (article 6:212 DCC) or breach of contractual obligations (article 6:74 DCC).
Since the implementation of the Directive on Antitrust Damages Actions, the DCC contains special provisions for antitrust damages actions. Amongst others, on the basis of article 6:193l DCC, a cartel infringing competition laws is assumed to cause damage. On the basis of article 6:193m DCC undertakings which have infringed competition laws through joint behaviour are jointly and severally liable for the harm caused by that infringement.
What is required (e.g. in terms of procedural formalities and standard of pleading) in order to commence a competition damages claim?
In order to have standing, the claimant needs to have sufficient (legitimate) interest in its claims (article 3:303 DCC). Legal proceedings are initiated by serving a writ of summons on a defendant through a bailiff. In the writ of summons, the defendant is requested to appear before the court on the indicated docket date. Both the claimant(s) and the defendant(s) are required to pay (standard) court fees.
Apart from the more administrative requirements such as including the claimant’s and defendant’s names and place of residence, the writ of summons will need to include a description of the claim and the grounds thereof (article 111 paragraph 2 sub d Dutch Code of Civil Procedure (DCCP)). This has to be a sufficient detailed description of the grounds and the relevant facts and circumstances, so that the defendant is capable of adequately defending itself. In addition, each of the parties is obliged to truthfully put forward any and all relevant facts that support their case (article 21 DCCP).
In 2012, the Dutch Supreme Court in the ANVR/IATA case (ECLI:NL:HR:2012:BX0345) laid down the groundworks for the obligation to furnish facts in (stand-alone) competition damages cases. The court held that the claimant should substantiate its claim with the relevant (economic) facts and circumstances in such way that it facilitates a sufficiently adequate and founded (economic) party debate and assessment of the court on e.g. the market definition, the relevant market structure and market characteristics, the actual functioning of the relevant market (s) and the effect thereof of the alleged infringements. The claimant cannot suffice with a general indication of infringements of competition laws or a brief indication of the relevant geographic and product markets. The threshold for furnishing facts is obviously less high in case there is an infringement decision from a competition authority. However, that the obligation for claimants to furnish facts is also relevant in follow-on cases has been confirmed in several recent cases, from which it follows that the claimant must provide a sufficient factual basis for its claims (e.g. Arnhem-Leeuwarden Court of Appeal, ECLI:NL:GHARL:2019:1060; Amsterdam District Court, ECLI:NL:RBAMS:2019:3574).
What remedies are available to claimants in competition damages claims?
In competition damages cases brought before the Dutch courts, the claimant is likely to claim damages (which do not have to be quantified from the outset) or declaratory relief in order to establish that e.g. the defendant is liable for damages, that an agreement is null and void owing to incompatibility with the competition rules or that the defendant has abused its dominant position. The claimant can also ask for a prohibition for certain (future) behaviour. Punitive damages are not available as they are considered contrary to the public order. The principle is that an injured party should not be overcompensated.
Available interim (provisional) relief includes injunctions for an advance payment of damages, seizure of assets and/or evidence and limited disclosure of documentary evidence.
A foundation or association representing more persons which have been harmed by the same or similar competition law breaches may request a preprocedural hearing prior to issuing a writ of summons (article 1018a DCCP). In order to request such a hearing the group represented by this foundation or association has to be of sufficient size. It is up the court’s discretion whether such request will be granted. Such a hearing can be used to explore a settlement or discuss the procedural order of the upcoming proceedings. A request for a preprocedural hearing by claimants in respect of the CRT cartel was dismissed in 2018 (Amsterdam District Court, ECLI:NL:RBAMS:2018:1682).
What is the measure of damages? To what extent is joint and several liability recognised in competition damages claims? Are there any exceptions (e.g. for leniency applicants)?
The main principle is that damages are calculated on the basis of actual loss. If an accurate (concrete) calculation is impossible or very difficult, the court has the discretion to estimate damages in the abstract. Fines imposed by national competition authorities are not taken into account.
As a general principle undertakings are jointly and severally liable (article 6:193m DCC), but there are exceptions for small and medium-sized enterprises and for successful immunity applicants.
In principle, successful immunity recipients can only be held jointly and severally liable for damages incurred by their own direct or indirect purchasers. Only when claimants cannot obtain full compensation from the other cartel members, they can claim recourse from the immunity recipient (article 6:193m paragraph 4 DCC). Article 6:193n DCC provides that the contribution of an immunity recipient, in relation to the other offenders involved in the infringement, to the compensation for the harm suffered by their direct and indirect purchasers and suppliers shall not exceed the compensation for the harm suffered by its direct and indirect purchasers and suppliers, in proportion to the extent to which the circumstances imputable to it have contributed to the harm.
What are the relevant limitation periods for competition damages claims? How can they be suspended or interrupted?
Article 6:193s DCC contains a special statute of limitation period for competition damages claims. The temporal scope of article 6:193s DCC seems to apply to claims initiated on or after 26 December 2014, although there is some debate/criticism in this regard. The subjective limitation period is five years and starts to run the day after (i) the infringement ended and (ii) the injured party became aware of the infringement, the fact that the infringement caused harm to it and the identity of the undertaking that committed the infringement. The absolute limitation period is twenty years and starts to run the day after the infringement ended (regardless of whether the claimants are aware of the infringement on that day).
In the event article 6:193s DCC is not applicable, the limitation period for tortious liability in article 3:310 DCC applies. In that case, the five years limitation period starts to run on the date after the day that the injured party becomes aware of (i) the fact that it incurred a loss and (i) the identity of the responsible party. The 20 years period starts to run on the day the damage was inflicted.
Following article 6:193t DCC, the limitation period for competition damages claims is, amongst others, suspended when a competition authority starts investigating an alleged infringement until any decision by that competition authority has become final. This extension starts at the day after the limitation period ended. The prolongation of the length of the limitation period equals the period necessary to conclude a final breach or other way to end the proceedings, plus one year. In addition, for any Dutch law governed competition damages claim, the limitation period can be interrupted by initiating legal proceedings or issuing a written claim notice to the defendant(s) in which the rights of the claimant are unequivocally reserved. Upon such interruption notice a new limitation period of five years will start to run (article 3:319 DCC). Articled 6:193t DCC is applicable to claims initiated on or after 10 February 2017, but only if it concerns infringements that occurred after 26 December 2014. For cases that have taken place before that date, the general limitation rule in article 3:310 (1) DCC continues to apply.
Which local courts and/or tribunals deal with competition damages claims?
The district courts deal with competition damages claims in first instance. Although there are no specific civil courts dealing with civil competition cases, there are a number of judges which have extensive experience in this field. After a judgment in first instance, an appeal may be lodged before the competent court of appeal. The final instance is the Supreme Court.
In addition, in January 2019 the Netherlands Commercial Court (NCC) opened its doors as part of the Amsterdam District Court and the Amsterdam Court of Appeal. This court offers proceedings conducted in the English language, but only if it concerns international commercial cases (which may include competition law damages claims with an international element (e.g. claimant and defendant are each domiciled in a different country) and the parties explicitly agreed to litigate before the NCC in the English language. The NCC is supposed to provide tailored and faster proceedings dealt with by specialised judges.
How does the court determine whether it has jurisdiction over a competition damages claim?
The court has to examine ex officio whether it is has jurisdiction.
For cases with international aspects, the rules of European or Dutch private international law become relevant. The Brussels Recast Regulation ((EU) No. 1215/2012) applies in proceedings instituted on or after 10 January 2015 whereby the defendant is domiciled in a EU member state. The general rule is that the Dutch courts have international jurisdiction when the defendant is domiciled in the Netherlands (article 4). Furthermore, if the claim is based on tort, the Dutch courts have international jurisdiction if the harmful event occurred in the Netherlands (article 7(2)) and in the event there is a Dutch anchor defendant (article 8(1)). In the latter case it is required that the claims against the anchor defendant and the other defendants are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceeding. If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State, article 25(1).
In the event that the Brussels Recast Regulation is not applicable, the DCCP provides similar rules for establishing jurisdiction as the Brussels Recast.
How does the court determine what law will apply to the competition damages claim? What is the applicable standard of proof?
For events giving rise to damages occurred after 11 January 2009 the Rome II Regulation applies to determine which law is applicable to the claims. Article 6(3) Rome II Regulation provides that the law applicable to claims in relation to restriction of competition shall be the law of the country where the market is or is likely to be affected. If the market is likely to be affected in more than one country, a claimant suing in the court of the country in which the defendant is domiciled may choose to base its claim on the law of that court, provided that the market in that country is directly and substantively affected. Article 6(2) Rome II Regulation provides that where an act of unfair competition affects exclusively the interests of a specific competitor, Article 4 Rome II Regulation shall apply.
In respect of infringements that occurred before 11 January 2009, the Dutch courts will apply the Wet conflictenrecht onrechtmatige daad (Conflict Law on Wrongful Acts (WCOD)). Article 4 of this act provides that competition damages are governed by the law of the country in which the competition was impaired.
The burden of proof with regard to alleged facts supporting the existence of a claim is in principle borne by the claimant, as follows from article 150 DCCP. The claimant will, therefore, need to substantiate its claims and arguments in the writ of summons. See above under 2 for the standard thereof. The claimant has to prove that a tortuous act occurred (i.e. a breach of competition law, the existence damages and causal link between the wrongful act and the damage suffered). However, in the case a competition authority has established a competition law infringement in a decision which is no longer subject to appeal the wrongful act has - in principle - been established. In addition, following the implementation of the Cartel Damages Directive, a competition law infringement is presumed to have caused damage (article 6:193l DCC). This (rebuttable) evidentiary presumption means that the infringing party will have to prove that no damage was caused by the infringement.
To what extent are local courts bound by the infringement decisions of (domestic or foreign) competition authorities?
Article 161a DCCP lays down the evidentiary value of a final and conclusive cartel infringement finding by the Netherlands Authority for Consumers & Markets (ACM). An irrevocable decision containing an infringement decision by the ACM provides irrefutable evidence of the established infringement in proceedings in which damages are claimed for an infringement of competition law as referred to in article 6:193k(a) DCC. European Commission decisions are binding on the addressee of those decisions in private enforcement proceedings. Under Dutch law it is not certain whether this applies to the entire decision or only the operative part. In Dutch civil proceedings proof can be delivered by all legal means available (152 paragraph 2 DCCP), hence also by foreign infringement decisions. Courts are allowed to take into consideration evidence to the contrary.
To what extent can a private damages action proceed while related public enforcement action is pending? Is there a procedure permitting enforcers to stay a private action while the public enforcement action is pending?
In the event the decision of the European Commission is challenged, the Masterfoods-doctrine provides that national civil proceedings can be stayed or suspended until the decision of the Commission to impose a fine has become irrevocable. The Dutch courts so far have not been very receptive of this argument. In, for example, the Air Cargo cartel cases the court decided to proceed with the proceedings to the extent it does not concern questions of fact or law to which the answer depends on the validity of the European Commission’s decision, e.g. establishing the applicable law and the question whether the claims have been time barred.
For the proceedings to be stayed, there must be reasonable doubt that the European Commission’s decision is valid. The party requesting stay of proceedings needs to prove that it has appealed against the decision and substantiate that in the proceedings before the EU courts, it reasonably contests the European Commission’s decision and set out the defences that it intends to raise in the national proceedings, so the national court can determine whether and to what extent the assessment of those defences raised in the national proceedings is dependent on the validity of the European Commission’s decision.
What, if any, mechanisms are available to aggregate competition damages claims (e.g. class actions, assignment/claims vehicles, or consolidation)? What, if any, threshold criteria have to be met?
Class actions are possible under Dutch law. A Representative Organisation, an association (vereniging) or foundation (stichting) established under Dutch law, that is permitted to represent the interests of parties which allegedly suffered damages in accordance with the criteria set out in article 3:305a DCC, can represent the interests of these parties and initiate one single claim against the responsible party before the Dutch court. As soon as the new approved legislation enters into force these organisation will also have standing to claim damages.
In addition, there are various examples of litigation vehicles funded by third parties, who either bring claims on behalf of a group of injured parties or who acquired the claims through assignment from those parties. Such vehicles are generally considered to have standing. Consolidation of identical or related cases pending before the same court is possible as well, which means that similar timelines will be applied by the court in each of the individual proceedings.
Are there any defences (e.g. pass on) which are unique to competition damages cases? Which party bears the burden of proof?
Defendants in competition damages cases may argue that the injured party has passed on its damage downstream (to its customers) and thus did not suffer any damage. This is codified in article 6:193p DCC after the implementation of the Cartel Damages Act. The burden of proof that passing-on of the overcharge occurred is borne by the defendant. Under the second sentence of article 13 of Directive 2014/104/EU, the infringer may also reasonably require the claimant and third parties to provide access to the evidence, which possibility also exists under article 843a of the DCCP.
Is expert evidence permitted in competition litigation, and, if so, how is it used? Is the expert appointed by the court or the parties and what duties do they owe?
Generally, parties in civil law cases may submit evidence from their own party-expert, and/or the court may appoint an independent expert (article 194 DCCP). As for the court appointed expert, it is at the court’s discretion whether it deems such an appointment necessary for its decision on the case. It is also possible to summon an expert as witness in the proceedings (article 194 DCCP). The court will decide on the evidentiary value of a party or court appointed expert’s testimony or report.
In practice, in competition damages cases, the parties often rely on (written) expert evidence, in particular (economic) reports on the quantification of damages or for substantiation of the pass on defence.
Describe the trial process. Who is the decision-maker at trial? How is evidence dealt with? Is it written or oral, and what are the rules on cross-examination?
The proceedings start with a writ of summons. The defendants will then have to submit their statement of defence, or may decide to submit preliminary motions first. There will usually be a second round of submissions on the merits. In complex cases, which is often the case in competition damages cases, the parties and the court will discuss the procedural order in a case management hearing. Proceedings can be bifurcated as well.
The decision-maker at trial is the court. In complex cases, the court will consist of three judges (generally appointed for the whole duration of the case). Case management hearings may be dealt with by one of those three judges. The parties define the legal scope of the proceedings - and in its decision - the court is not allowed to go beyond the ambit of the facts of the dispute. Although the court may not add facts if they were not alleged, the court may ex officio think of the relevant legal grounds for a claim or a defence.
Evidence can be supplied in any form, except where the law provides otherwise or the court decides otherwise. The parties can conclude an evidence agreement. Article 153 DCCP provides that these agreements remain inapplicable when they relate to the evidence of facts to which the law attaches consequences, which are not at the discretion of the parties. Generally, parties will submit written exhibits together with their statements and will offer to provide further evidence to the extent needed. In an interim judgment, the court can then decide that it requires further evidence (but proceedings do not always get to that stage). As noted above in relation to the expert evidence, the court is free in its assessment of the evidence provided. Expert evidence is common practice in competition law cases.
If called upon to testify, any person is in principle obliged to appear as a witness. A witness hearing is led by an examining judge, who in most cases questions the witness first. After that both parties are allowed to ask questions to the witness. Dutch procedural law is not familiar with the concept of cross examination.
The procedural rules of the Netherlands Commercial Court explicitly stipulate that parties may enter into an agreement by which they elect to depart from the statutory rules of evidence. Hence the parties can agree on e.g. cross examination of witnesses.
How long does it typically take from commencing proceedings to get to trial? Is there an appeal process? How many levels of appeal are possible?
It depends on the applicable service period when the first docket date will occur. After the first docket date, the defendants receive six weeks to submit their statement of defence (but will often receive an extension).
The overall duration of cartel damages proceedings is variable. It depends on various factors, such as the complexity of the case, whether proceedings are bifurcated, the schedule and workload of the court, and the procedural attitude of the parties involved (the summons period, the extensions that the parties agree to etc.). Proceedings can be delayed in the event that procedural motions are submitted (generally at the outset) such as the request for leave to initiate third party contribution proceedings, contesting the jurisdiction of the court, a request to join similar proceedings. If an appeal against the competition authority’s decision is pending, the defendants may also request for the stay of the proceedings. To plan the procedural aspects of a case, the court can organise (or the parties may request it to organise) a case management hearing. Certain preliminary motions prevent the court from continuing the proceedings on the merits, such as a jurisdictional challenge.
It is possible to appeal within three months after the date of a judgment of the district court at the competent court of appeal. Such proceedings will likely take up 1-1,5 years. Afterwards, appeal can be lodged within 3 months of the date of the judgment at the Dutch Supreme Court.
Do leniency recipients receive any benefit in the damages litigation context?
Article 6:193m paragraph 4 DCC provides that an immunity recipient shall be jointly and severally liable for the damage resulting from the infringement only vis-à-vis its direct and indirect purchasers and suppliers, unless full compensation for the damage cannot be obtained from the other undertakings participating in the infringement. Furthermore, article 193n DCC provides that the contribution of an immunity recipient, in relation to the other offenders involved in the infringement, to the compensation for the harm suffered by their direct and indirect purchasers and suppliers shall not exceed the compensation for the harm suffered by its direct and indirect purchasers and suppliers, in proportion to the extent to which the circumstances imputable to it have contributed to the harm.
How does the court approach the assessment of loss in competition damages cases? Are “umbrella effects” recognised? Is any particular economic methodology favoured by the court? How is interest calculated?
The main principle is that damages are calculated on the basis of actual loss. If an accurate (concrete) calculation is impossible or very difficult, the court has the discretion to estimate damages in the abstract. The injured part can claim direct and indirect (loss of profit) damage, as well as damage resulting from dealings with non-cartel participants (umbrella damage).
The compensation due for delay in the payment of a sum of money consists of the statutory interest of that sum over the time that the debtor has been in default with its payment. For cases based on tort, payment is due from the date the damage can be claimed (i.e. the date the damage has been incurred). The statutory interest rate is determined by the government; currently it is 2% per annum.
Can a defendant seek contribution or indemnity from other defendants? On what basis is liability allocated between defendants?
Under Dutch law, for joint and severally liable parties the levels of contribution between them is in principle based on (i) the extent to which the circumstances attributable to each party contributed to/caused the damage but (ii) can be adjusted if the outcome is not deemed reasonable.
The assessment very much depends on the circumstances of the case and there are no known precedents on the allocation of liability for cartel damages in the Dutch courts. As such it is hard to predict which circumstances the court will take into account, but for example aspects such as market shares, relative profits, direct sales to the claimants, the role of a party in the organisation and operation of the cartel agreements, the fact that a party received a greater benefit than the other parties and the extent to which a party contributed to the establishment of the cartel may be relevant. In the Dutch courts, the fall-back position if it cannot be established to which extent various events and circumstances led to the damages, is that the share of liability is allocated based on equal parts.
The rules for contribution for defendants who received immunity with respect to fines for a competition infringement and for defendants who entered into a settlement agreement deviate from this general contribution obligation, article 6:193n DCC.
Contribution and/or indemnification claims can be brought both in the context of the main proceedings on the basis of article 210 DCCP and in proceedings between defendants after a judgment or settlement in the principal claim has been reached.
In what circumstances, if any, can a competition damages claim be disposed of (in whole or in part) without a full trial?
If parties decide to settle. The option of a pre-procedural hearing to i.a. discuss a settlement has been mentioned above under 3. During the trial, the court will also test whether there is an appetite for a settlement. In the event there are multiple defendants which are jointly and severally liable vis-à-vis the claimant, it is possible pursuant to Dutch law to reduce the risk of recourse by non-settling defendants on the settling defendant, by inserting in the settlement agreement a provision pursuant to which the claimant will need to reduce the claim on the other defendants with an amount equal to the settling defendant’s contribution to the damages suffered as a consequence of the cartel. The judge can also propose mediation to the parties at all stages of the procedure.
What, if any, mechanism is available for the collective settlement of competition damages claims? Can such settlements include parties outside of the jurisdiction?
The Dutch Act on Collective Settlement of Mass Damages Claims (Wet Collectieve Afwikkeling Massaschade) (“WCAM”) facilitates the collective settlement of mass damages claims. Under WCAM, the interests of a group of parties which suffered damages (e.g. by an infringement of competition law) can be represented by a Representative Organisation, which may be the same entity that initiated a collective action. Should the Representative Organisation subsequently agree to a settlement with the party which infringed e.g. competition law regarding the compensation payable to the parties who suffered damages represented by it, they can file a joint petition with the Amsterdam Court of Appeal to declare the settlement agreement collectively binding. Provided that the requirements under WCAM for a settlement agreement are met, the Amsterdam Court of Appeal will declare the settlement agreement collectively binding. Notification of the judgment and of the possibility to opt out of the settlement agreement within a certain period of time (which must be at least three months), is then sent to the parties which suffered damages. The parties which do not opt out are bound by the settlement, articles 7:907 and 908 DCC.
Under the newly approved Collective Damages Act is also room for settlement. After the court decided on the appointment of an “Exclusive Representative” (the organisation which represents all parties which have suffered damages), the scope of the action and the definition of class of parties which suffered damages and gave these parties residing in the Netherlands the possibility to opt out and these parties who are not domiciled in the Netherlands to opt-in, the court will set a term for the parties to try to reach a settlement. If no settlement has been reached the proceedings will continue. Before reaching a decision, the court may order both the “Exclusive Representative” and the defendant to provide it with a proposal on the collective settlement of the damage, which it may use to determine the damages allocated to the parties which suffered damages.
What procedures, if any, are available to protect confidential or proprietary information disclosed during the court process? What are the rules for disclosure of documents (including documents from the competition authority file or from other third parties)? Are there any exceptions (e.g. on grounds of privilege or confidentiality, or in respect of leniency or settlement materials)?
Dutch law does not provide for a general duty to disclose comparable to the UK or US discovery rules. At the outset of the proceedings, parties will generally only disclose those documents which assist their case and on which they wish to rely. However, the Dutch Code of Civil Procedure (“DCCP”) does contain a limited number of specific regulations which allow the court to order the disclosure of specific documents which are relevant to the assessment of the case, either upon request of a party (article 162, 843a and 843b DCCP) or ex officio (article 22 and 162 DCCP).
If there are compelling reasons to refuse to disclose, for example if the requested documents contain confidential business data, the duty to disclose may not apply. The court will balance the interested of the parties. The duty to disclose does not apply to those who have a right to refuse to give evidence on the basis of their professional occupation, such as attorneys. Other options for the court to protect commercially sensitive information are imposing an obligation of confidentiality on the requesting party, ordering that certain documents will be deposited at the court and the requesting party can study these documents in person (without giving the possibility of taking photocopies), proceedings behind closed doors.
Can litigation costs (e.g. legal, expert and court fees) be recovered from the other party? If so, how are costs calculated, and are there any circumstances in which costs recovery can be limited?
In case the court has ordered an expert examination, the court will summon the losing side to pay the costs of the experts. The losing party has also to pay the court fees of the winning party. Only a fraction of the legal costs actually incurred by the winning party can be recovered from the losing party. The court will calculate these costs by multiplying the number of procedural steps in a case by a certain tariff which depends on the amount of the claim.
Only in very limited circumstances (e.g. clear procedural abuse) the court may award full compensation of the legal fees (including attorney’s fees) of the winning party.
For proceedings at the Netherlands Commercial Court the parties may pre-agree on full compensation of the legal fees. However, such an agreement would be very unusual in competition law claims.
Are third parties permitted to fund competition litigation? If so, are there any restrictions on this, and can third party funders be made liable for the other party’s costs? Are lawyers permitted to act on a contingency or conditional fee basis?
Third party funding is generally permitted and often attracted in practice. Lawyers are not permitted to act on a “no win- no fee basis”. However, they are allowed to agree on certain success fees on top of their usual fees.
What, in your opinion, are the main obstacles to litigating competition damages claims?
The duration and legal costs/funding of the proceedings; the lack of data for e.g. the assessment of damages (due to the infringement having taken place a long while ago).
What, in your opinion, are likely to be the most significant developments affecting competition litigation in the next five years?
The Netherlands is an increasingly popular forum for litigating competition damages claims. We expect this to continue, certainly with the Mass Claim Settlement Act entering into effect (expected second half of 2019). Under this Act, it will be possible for representative organisations to claim damages for a group of injured parties, rather than only declaratory relief such as currently is the case. Until such time, we would expect the pre-existing litigation model based on the assignment of claims to a litigation vehicle to continue to be applied by litigation funders and their lawyers.