<nr>1</nr>Procedural history

<nr>3</nr>Discussion On the Motion 3.1. On 27 November 2024, the Underwriters raised a motion to allow them to intervene in these proceedings on the basis of Article 217 Dutch Code of Civil Procedure (DCCP). The Court granted this motion on 20 December 2024, and allowed the Underwriters to submit a statement of claim on 6 January 2025. On that date, the Underwriters did not submit a statement of claim. They did submit a ‘statement on behalf of the intervening parties’ informing the Court that they “intervene on behalf of Welten in these proceedings (voegen aan de zijde van Welten).” The Court allowed this change in position because the Underwriters still had an interest in attending the hearing (to protect their right of recourse against OTW in case of fraud) and no party was harmed by the Underwriters’ continuing to participate in the proceedings. 3.2. On 7 April 2025, the Underwriters introduced a claim of their own (see para. 2.1). The Court allowed Welten and OTW to respond. 3.3. Welten deferred to the discretion of the Court. OTW raised several objections: there have been no new relevant developments since the Underwriters joined the proceedings; the Underwriters have apparently simply changed their minds, a joining party cannot institute entirely new claims; this would constitute a new request for intervention, which is tardy (Article 218 DCCP), the initial motion for intervention was void (nietig) for the purposes of bringing these claims in the proceedings, as it did not comply with the requirements of Article 219(2) DCCP, the Underwriters violated due process by first seeking to be allowed into the proceedings as a joined party, only to then come up – far beyond any reasonable time limit – with a new claim as an intervening party, by the Court allowing a new claim at this late stage, the Underwriters would significantly expand the scope of these proceedings which would inevitably cause an undue delay, the outcome of the main proceedings cannot result in a subrogation right, as any damages awarded to Welten are to be reduced by any amounts recovered from the Underwriters; the Underwriters need to initiate separate proceedings, allowing a new claim after the procedural debate on the merits has ended and an interim judgment has been rendered is contrary to Dutch procedural law, due process and the right to a fair trial. 3.4. The Court need not take a decision on whether the introduction of the claim by the Underwriters is to be considered a change of position or the initiation of a new claim for intervention. In either case the Underwriters should be allowed to introduce the new claim. The reasons for this finding are as follows. 3.5. The Underwriters’ interest in joining or intervening in these proceedings is still the same: to protect their right of recourse against OTW. 3.6. The claim for intervention and the subrogation claim were introduced in a timely fashion. Under Article 218 DCCP a claim for intervention is brought by submitting a motion on or before the court calendar date on which the last statement in the pending proceedings is submitted. This requirement is not only fulfilled where (in first instance) the statement of defence is submitted (which generally is the last statement prior to the hearing on the merits), but also where – after such a statement - an interim judgment has been given allowing the parties to elaborate on their position in writing. 3.7. The Court is aware that the Second Interim Judgment only allows the parties to submit a “brief” (in Dutch: “een akte”) on certain issues, whereas Article 218 DCCP speaks of “statement” (“conclusie” in Dutch, which is generally not limited to certain factual or legal issues). However, the purpose of the statutory time limit is to allow the parties in the main proceedings to exchange their views on the third party’s wish to intervene in the proceedings and its intended claim prior to the court ruling on the merits of the main proceedings. This is confirmed by the parliamentary history on the simplification and digitalisation of the rules of procedure (which legislation was eventually withdrawn), resulting in the term “statement” being changed into “last written exchange of arguments”. This includes the exchange of arguments on specific issues. 3.8. This is the case here. In the Second Interim Judgment the Court did not give a final ruling on the claims brought by Welten, but allowed Welten and OTW (and the Underwriters in their position as joining party on Welten’s side) to comment on certain issues relevant for this final decision. The calendar date for submitting the briefs is 4 June 2025, which allows ample time for Welten and OTW to respond to the Underwriters’ claim. 3.9. OTW’s reliance on Article 219(2) DCCP is to no avail. Where the claim and grounds for the claim were missing in its initial motion for intervention on 27 November 2024, this has been rectified by the Underwriters’ letter dated 7 April 2025. This is allowed under Article 219(2) in conjunction with Article 122 DCCP. 3.10. Based on the above analysis, the Underwriters introduced their claim on time, but they may still violate due process, so that the Court will enquire as to whether there is a violation here. The Court concurs with OTW that the Underwriters could have introduced their claim earlier, as the Court set a date specifically for this purpose (6 January 2025). They chose to join Welten’s side instead. However, this is understandable, as on that same date a last-minute settlement was reached in the dispute between Welten and the Underwriters on the amount of damages due to Welten under the Policy. This dispute prompted the Underwriters to initially seek intervention in these proceedings. 3.11. The fact that the claim was introduced after the Second Interim Judgment was given does not prejudice OTW in its defence. The briefs pursuant to that judgment need not be submitted before 4 June 2025 and OTW will be given a time limit of 6 weeks from today to submit its statement of defence. This allows OTW enough time to prepare a defence against the subrogation claim. Moreover, the Court expects the parties – given the interests involved – to request a hearing after the briefs have been exchanged. This will result in some delay, but this is to be expected where the dispute cannot be dealt with by the Court in its entirety after the first hearing. Therefore, the Court will set a tentative hearing date not only to deal with the subject of the briefs (the damages to be awarded to Welten), but also on the Underwriters’ subrogation claim. 3.12. Allowing the subrogation claim to be dealt with in these proceedings is in the interest of justice and efficiency, as the claims are closely connected and a risk of incompatible judgments would exist if the claims were dealt with separately. OTW’s liability towards the Underwriters is dependent on its liability towards Welten (see Clause 11.5 of the SPA). Dealing with the Underwriters’ subrogation claim in these proceedings is also efficient, as it eliminates the need for separate proceedings and does not result in a delay of these proceedings. The Underwriters made their position as to OTW’s liability clear in the main proceedings so far (they were allowed to comment on that as a joining party), which was taken into account in the Court’s Second Interim Judgment. The issue of OTW’s liability on the basis of fraud does not need to be re-litigated. 3.13. OTW’s objections against the introduction of a subrogation claim are therefore without merit. OTW will be allowed to submit a statement of defence on the Underwriters’ subrogation claim within 6 weeks from now.