Am I entitled to compensation if my lawyer filed a late appeal?

Loss of an opportunity

To get compensation, you normally, as an aggrieved party, must always prove fault, your damages and the causal link between them.

Filing a legal remedy, such as an appeal, is an obligation of result. The late filing (or failure to file) of an appeal is therefore easy to prove: you have to prove that you ordered an appeal. If this is not done or is done late, it is clear that your lawyer was at fault.

What becomes more difficult is to prove your damages suffered. After all, what is your damage, or how do you estimate your damage? Causation is also not so easy to prove: after all, even if your lawyer had filed a timely appeal, would you have been certain to be proven right on appeal? 

In such cases, it is clear that because of your lawyer's mistake, you lose a chance to get your right in degree of appeal. The key question then, of course, is: how likely is it that you would have been proven right? How likely is it that the appellate court would reform the judgment in your favour? 

Proportionele aansprakelijkheid

Legal doctrine and case law unanimously assume that you are entitled to compensation for the loss of opportunity you suffered. 

In a Judgment of 13 January 2022 the Court of Cassation (AR C.190.153.N) ruled: ‘The court may award compensation for the loss of an opportunity to gain an advantage or avoid a disadvantage if the loss of this opportunity is due to fault. The loss of an opportunity is eligible for compensation if there is a conditio sine qua non relationship between the error and the loss of this opportunity and it is a real opportunity.’

Thus, to obtain compensation for loss of opportunity, three conditions must be met:

• There must have been a fault, in our case the failure to file the appeal in time;
• There must be a causal link between the fault and the loss of opportunity;
• The opportunity lost must be realistic.

To ascertain how likely it was that you would have obtained your claim in appeal grade, the court will have to look again at your original dispute. It will assess the file as the appellate court should have done, and thus look at your arguments in support of your claim. Thus, the underlying damages will always be compensated proportionally when you lose an opportunity.

This means that you will never receive full compensation for the loss of your claim, but always a percentage. This seems logical: either it is an opportunity or it is not. If it is not a chance, then it is a certainty.

The greater the chance, the greater the percentage of the amount of damages you will be entitled to.

In practice, the court often determines this percentage according to fairness. 

Article 6.22 of the Civil Code

Following the Cassation case-law, there will soon be a legal basis governing compensation for loss of opportunity. 

Article 6.22 of the Civil Code states:

The law, which comes into force on 1 January 2025, thus also provides for a percentage reduction in compensation in proportion to the probability with which the fault caused the damage.