Lawyer's fee clause: when is an hourly rate insufficient?

Introduction

A woman launches a crowdfunding campaign to pay for legal assistance. She has already had one lawyer who proved too expensive. She finds a new firm and agrees a rate: € 200 per hour. What those hours will add up to? She does not know. Nor does the firm, or at any rate it does not tell her. A little over a year later an invoice arrives for € 64,579 including VAT. She refuses to pay. The court largely finds for her: the fee clause is set aside as unfair. Roughly a third of the claim survives, and only because a cost estimate had been given for one supplementary engagement.

The picture is more nuanced than a run of annulled invoices suggests. Since the judgment of the Court of Justice of the European Union of 12 January 2023 a court may intervene where a service provider fails to inform a consumer client in advance about the costs to be expected. That holds for a lawyer, a tax adviser and a builder alike. The instrument works in two steps, first transparency and only then unfairness, and the second is an independent hurdle. The Arnhem-Leeuwarden Court of Appeal (12 August 2025, ECLI:NL:GHARL:2025:4995) set out that second step most fully. The Hague Court of Appeal (14 July 2026, ECLI:NL:GHDHA:2026:2248) followed the same line almost a year later. There, a lawyer's invoice for which no cost estimate had been given in advance was indeed non-transparent, but not unfair, and was awarded in full. Anyone who looks only at the information failure misses the heart of the test.

Twenty-one decisions of the courts of appeal and district courts are analysed below. Nineteen of them concern the outcome of an invoice. Seven times the fee clause survived without reduction, seven times a reduction of 10 to 60 per cent followed, and five times the clause fell. What makes the difference is rarely the absence of the cost estimate in itself.

An hourly rate alone does not meet the transparency requirement

On 12 January 2023 the Court of Justice answered a Lithuanian reference in case C-395/21 concerning a lawyer's fee clause. The answer was clear: an hourly rate alone is not transparent within the meaning of Article 4(2) of Directive 93/13.

The reasoning: on the basis of an hourly rate an average consumer cannot assess what the service will ultimately cost. Legal proceedings are complex and unpredictable, but that does not relieve the service provider of the obligation. The Court accepts that exact forecasts are not always possible. But the information must contain indications allowing the consumer to estimate the total amount approximately: an estimate of the minimum number of hours, an indication of the order of magnitude, or specific arrangements for interim statements.

A non-transparent fee clause is then unfair if it creates a significant imbalance between the parties' rights and obligations to the detriment of the consumer. That is a second test, with a yardstick of its own.

Duties to inform for engagements at the office and at a distance

Dutch law imposes a layered set of information duties on lawyers and other service providers contracting directly with consumers.

Which duty applies depends on how the engagement comes about. The general rule is Section 6:230l DCC, which applies to every contract not concluded at a distance or off-premises. The trader must then provide information about, among other things, the main characteristics of the service and the total price. Where the price cannot be calculated in advance because of the nature of the service, the trader must explain how it is calculated. For open-ended contracts the conditions for termination are added. Because the provision is framed negatively, it also covers the engagement accepted at the service provider's own office.

Only where the contract qualifies as a distance contract do the heavier obligations of Sections 6:230m and 6:230v DCC apply, including confirmation on a durable medium and notification of the right of withdrawal. That the contact took place by telephone or email is not enough for that.

Section 6:230g(1)(e) DCC additionally requires an organised system for the provision of services at a distance. According to the explanatory memorandum to the Dutch act implementing the Consumer Rights Directive, the words "organised" and "system" mean that the use of means of distance communication must be systematic rather than more or less incidental. The memorandum itself takes that formulation from the earlier legislative history on distance selling (Parliamentary Papers II 2012/13, 33 520, no. 3, under (e), referring to Parliamentary Papers II 1999/2000, 26 861, no. 3, p. 13). A website carrying no more than information about the trader and its products is, according to that same memorandum, expressly not such a system.

The same memorandum also settles the borderline case that keeps recurring in the case law. Where a contract is negotiated in the shop and then concluded over the internet or by telephone, there is no distance contract; the reverse holds equally. So where the engagement was preceded by a meeting in person in which it was negotiated, there is no distance contract, even if the agreement is afterwards concluded by email (Overijssel District Court, ECLI:NL:RBOVE:2024:2803). Conversely, an organised system requires no web shop or order button: a website that goes beyond a shop sign and encourages visitors to make contact at a distance is enough (Central Netherlands District Court, ECLI:NL:RBMNE:2026:487).

Alongside these consumer-law obligations, the unfairness test of Directive 93/13 operates through Section 6:231 DCC and following. A fee clause is a core term and therefore falls outside the concept of general terms and conditions, so that the unfairness test does not apply to it. Under Section 6:231(a) DCC that exception holds only in so far as the term is drafted in plain, intelligible language. Where it is not, the fee clause falls within Division 6.5.3 after all and may be annulled under Section 6:233(a) DCC.

The Rules of Conduct for the Dutch Bar (Rule 17) additionally require a lawyer to inform the client about the financial consequences of the assistance and to give timely warning where costs threaten to be exceeded. That professional norm carries over into civil law: both the Hague Court of Appeal and the Hague District Court expressly took Rule 17 into account in the civil assessment of the fee clause.

Two steps: transparency and unfairness

Step 1. Transparency: an hourly rate alone is never enough

The case law is consistent on this point. Before the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2024:3269) a lawyer claimed payment of outstanding invoices for assistance in a divorce. The hourly rate of € 165 had been stated in advance, invoices went out monthly and the client had never complained. Even so the court held the fee clause non-transparent. It rejected invoicing monthly in practice as a substitute for a cost estimate: the lawyer should have indicated in advance whether this was a € 5,000, a € 10,000 or a € 50,000 case. That ruling broke with the same court's earlier case law in ECLI:NL:GHAMS:2023:440 and ECLI:NL:GHAMS:2023:949.

Periodic time sheets after the event do not cure it either. In the ITA case (Amsterdam District Court, ECLI:NL:RBAMS:2026:2670) the lawyer sent time sheets almost every month. The court held that this was not enough: the duty to inform cannot be discharged by sending statements afterwards of work already done. The client had no reference point against which to measure them.

What decides the matter is therefore not how the invoicing was done, but what was agreed when the contract was concluded. The Hague Court of Appeal (12 May 2026, ECLI:NL:GHDHA:2026:942) made that explicit. There the engagement letter contained, alongside the hourly rate of € 150, an undertaking to render interim invoices monthly. That the lawyer then failed to keep to it and invoiced only after more than two years made no difference to transparency: transparency is assessed as at the time the contract is concluded, not by reference to whether the term was actually performed (paragraph 247, referring to Supreme Court 21 April 2017, ECLI:NL:HR:2017:773). An undertaking to render interim invoices at reasonable intervals is precisely the second alternative the Court of Justice names, and the court therefore held the clause sufficiently transparent. It weighed that the number of hours required depended heavily on the other party's attitude, so that a forecast beforehand would add little to monthly invoicing.

The difference from the divorce case therefore lies in the engagement letter, not in the invoicing behaviour. An arrangement for interim statements recorded when the engagement is entered into makes the clause transparent. Monthly invoices sent without such an arrangement do not.

It is not only large invoices that are caught. A firm sent an advance invoice of € 726 for assistance at a police interview and ultimately charged three hours. The Hague District Court (4 March 2026, ECLI:NL:RBDHA:2026:4488) held that an engagement letter stating only the hourly rate and the advance was not plain and intelligible. That the client was also bound by binding advice from the Bar's Disputes Committee did not stand in the way of that test.

The duty to inform does not end when the contract is concluded. In a case before the Central Netherlands District Court (ECLI:NL:RBMNE:2026:431) a client paid his lawyer punctually until his business went insolvent in 2023. He then stopped paying. The lawyer carried on working and did not inform him about the financial consequences of the work still to be done. After the hearing the client received three invoices that took him entirely by surprise; he had thought the matter was over. The subdistrict court imposed a 20 per cent reduction for breach of that continuing duty.

Step 2. Unfairness: the comparison with default statutory law

Non-transparent and unfair are two separate steps, and the second is an independent hurdle. The Court of Justice stressed as early as paragraph 52 of the judgment of 12 January 2023 that non-transparent does not automatically mean unfair.

The Arnhem-Leeuwarden Court of Appeal worked that second step out most fully on 12 August 2025, in a case against the law firm Kienhuishoving concerning invoices totalling more than € 104,000. The court starts from the position that the lack of transparency is no more than one factor in the assessment of unfairness. What decides the matter is a comparison: does the clause place the consumer in a legally less favourable position than he would have occupied under national law without it? That yardstick is not new. The Supreme Court formulated it in Supreme Court 21 April 2017 (ECLI:NL:HR:2017:773), following the Court of Justice's Aziz judgment, and the court applies it here to a fee clause.

For an hourly-rate arrangement that comparison often falls in the service provider's favour, and the court explains sharply why. Without a fee clause, Section 7:405(2) DCC makes a reasonable fee payable. The rates charged, € 280 and € 130 per hour, were neither unreasonable nor unusual, and nor is billing by the hour, so the clause did not impair the consumer's legal position in that respect. The court adds a second point: under the statutory regime of Section 7:405 DCC a consumer equally cannot estimate the total costs in advance. The very information failure complained of is therefore no deterioration compared with the law that would apply without the clause. The fee clause was not unreasonably onerous, and the restitution claim failed.

The Hague Court of Appeal followed that line on 14 July 2026. A lawyer had assisted a consumer in a dispute about contact arrangements for his daughter. The engagement letter named an hourly rate of € 205 excluding VAT, but no estimate of the total costs and no arrangement for interim time sheets. The subdistrict court set the fee clause aside as unfair. The court of appeal reversed: the clause was not transparent, partly because Rule 17 of the Rules of Conduct generally requires a reasonable estimate of the costs, but the agreed rate of € 248.05 including VAT was not unreasonable given the nature of the case. Leaving the information failure aside, the clause therefore did not depart materially, to the consumer's detriment, from what would have applied as a matter of law.

The lawyer had moreover made no misleading suggestions about the costs, and it was not plausible that the consumer would have declined the engagement had he been fully informed. The invoice of € 1,763.24 was awarded in full.

The court warned, obiter, against the inverse reasoning. Treating a non-transparent clause as automatically unfair, without testing whether there has genuinely been a departure to the consumer's detriment, produces outcomes that are both inequitable and legally uncertain. The Lithuanian law underlying the judgment of 12 January 2023 expressly opted for a higher level of protection, equating non-transparent with unfair, but the Dutch legislature made no such choice. The mere absence of a cost estimate is therefore no independent ground for annulment or reduction.

The factors that do tip the balance:

• Apparent financial vulnerability. Did the service provider know that the client had limited means or that the financial side weighed particularly heavily?
• Misleading suggestions. Did the engagement letter create the impression that the costs would remain limited, or that a third party would bear them?
• Whether the rate is in line with the market. A customary hourly rate weighs in the service provider's favour.
• The complete absence of any indication. Did the service provider genuinely say nothing about the scale of the work?
• A figure mentioned that the final amount dwarfs. Was the client given an order of magnitude of which the invoice turns out to be a multiple?

In five cases the hurdle was cleared. In the ITA case the lawyer knew that the client had raised money for her legal assistance through crowdfunding and that she had found her previous lawyer too expensive. The financial dimension was plainly of decisive importance. In those circumstances, the court held, naming only an hourly rate amounted to something like a blank cheque. The fee clause was set aside as unfair: the court dismissed the entire claim of € 64,579, save for a supplementary engagement for preliminary relief proceedings for which a cost estimate had been given (€ 17,962 awarded).

The 's-Hertogenbosch Court of Appeal reached a comparable conclusion in the WonenBreburg case (ECLI:NL:GHSHE:2025:822): the engagement letter stated that any surplus on the advance of € 1,210 would be refunded. That created the suggestion that the total costs would roughly match the advance. The suggestion was untrue. The fee clause was annulled and the lawyer had to repay the advance.

The figure mentioned was decisive too in North Holland District Court (14 January 2026, ECLI:NL:RBNHO:2026:2374). The client had been quoted € 750 for reviewing a settlement agreement; the invoice climbed above € 5,500. Even if the oral explanation described by the firm had been established, the client had no reason to reckon with such a sum. The firm should have given an indication of the additional costs at the outset in case extensive negotiations proved necessary. That the client had agreed a comparable hourly rate with his previous lawyer made no difference.

That the norm is not reserved to the legal profession appears from North Holland District Court (11 March 2026, ECLI:NL:RBNHO:2026:2941). A professional legal services provider, not a lawyer, assisted an employee in an employment dispute at € 125 per hour and ultimately invoiced € 24,396.78. No indication of the order of magnitude had been given in advance; at the hearing the provider admitted having said it would probably take no longer than five to ten hours. It had moreover been agreed not to invoice monthly, on the argument that in a settlement the costs are usually borne by the employer. That both deprived the client of any sight of the mounting hours and created the false impression that the bill would not be hers. The fee clause was unfair; the claim was dismissed in its entirety and the € 3,426.70 already paid had to be returned.

In the Hague police-interview case, finally, the court expressly weighed that Rule 17 required the firm to give a reasonably formed estimate and that this had been omitted. The lack of transparency, contrary to the Rules of Conduct, meant that the requirement of good faith had not been sufficiently observed. The fee clause was annulled and € 484 had to be repaid.

Price reductions of 10 to 60 per cent

For breaches of the pre-contractual and contractual duties to inform, the district courts apply a sanctions model. The Civil Code itself provides no express sanction for such breaches. The basis lies in Supreme Court 12 November 2021 (ECLI:NL:HR:2021:1677), in which the Supreme Court identified partial annulment as a possible sanction and invited the lower courts to draw up non-binding guidelines with fixed percentages. That was done in the Guideline on the sanctions model for duties to inform, adopted by the national consultative body on 15 December 2021 and last amended on 6 February 2025, partly in response to the preliminary rulings of 4 October 2024. In Supreme Court 10 June 2022 (ECLI:NL:HR:2022:861) the Supreme Court held that a guideline of this kind contributes to the practical workability of the rules, to equal treatment of like cases and to legal certainty. A court may depart from it with reasons where the indicated sanction is not effective, proportionate and dissuasive. The model is therefore not binding.

The model expressly covers all three regimes of Division 6.5.2B DCC: for distance contracts Section 6:230m in conjunction with Section 6:230v DCC, for off-premises contracts Section 6:230m in conjunction with Section 6:230t DCC, and for contracts other than distance or off-premises contracts Section 6:230l DCC. Where part of the essential information is missing from the durable medium, that counts as a single breach. There are five categories, combining the number of sufficiently serious breaches with the question whether the order button meets Section 6:230v(3) DCC:

• one to three breaches, order button compliant: 20 per cent reduction of the principal sum
• no breaches, order button non-compliant: 33.33 per cent
• one or two breaches, order button non-compliant: 40 per cent
• four or more breaches, order button compliant: 40 per cent
• three or more breaches, order button non-compliant: 60 per cent

The order-button requirement applies only to distance contracts concluded by electronic means. Where the engagement is entered into at the office, or in an email exchange without an electronic ordering process, there is no order button capable of falling short. In practice the first and fourth categories then remain: 20 per cent for one to three breaches and 40 per cent for four or more. Sixty per cent is then attainable only through a reasoned departure upwards. The model stands apart from the annulment of an unfair term, dealt with above; what remains of the claim after that is covered further on. And as both courts of appeal showed, a market-conform rate without misleading conduct may produce no reduction at all, despite the absence of a cost estimate. The percentages that follow therefore describe the range where a sanction is in order.

Ten per cent is applied where the breaches are limited or the relationship between the parties is unusual. The Amsterdam Court of Appeal (13 May 2025, ECLI:NL:GHAMS:2025:1257) arrived at that figure in the case of a builder completing a garage conversion. The cost estimate of € 36,846.45 counted as a target price within the meaning of Section 7:752 DCC, so that without a warning no more than 110 per cent of it could be invoiced. The fee clause covering the additional work was non-transparent but not unfair; three breaches of pre-contractual duties to inform led to a 10 per cent reduction. Where a builder renovated the home of a befriended couple of lawyers, North Holland District Court (ECLI:NL:RBNHO:2025:6572) likewise applied 10 per cent: the special relationship between the parties and the client's legal knowledge weighed in the balance.

A 20 per cent price reduction is a common outcome for a single breach of the duty to inform, usually the absence of a cost estimate alongside an otherwise ordinary fee clause. Examples: North Holland District Court (ECLI:NL:RBNHO:2026:998), where the engagement arose at the office and the subdistrict court arrived at 20 per cent by way of partial annulment in conjunction with the rules on unfair commercial practices, and Central Netherlands District Court (ECLI:NL:RBMNE:2026:431).

The Amsterdam Court of Appeal applied 25 per cent in the divorce case, under the version of the model in force before 6 February 2025, which set 25 per cent for one to three breaches and 50 per cent for more than three (ECLI:NL:GHAMS:2024:3269).

Forty per cent applies to four or more breaches of essential duties to inform. The Amsterdam Court of Appeal applied this in a case in which a lawyer had provided no estimate of hours for assistance on appeal and in preliminary relief proceedings, had not notified the right of withdrawal and had sent no written confirmation. Of an invoice of nearly € 9,000, 60 per cent survived (ECLI:NL:GHAMS:2025:1765).

Sixty per cent applies in special circumstances. Gelderland District Court applied it in a case concerning a 28-year-old woman who had engaged an employment lawyer by email for an application procedure (ECLI:NL:RBGEL:2025:3738). The lawyer had begun phases 2 to 4 of the proceedings without any cost estimate, even though her father had expressly asked for insight into the costs. The proceedings failed; the total invoice came to more than € 27,000. The court considered the circumstances (a young client, an explicit request for cost information, a distance contract) a reason for a higher sanction than the standard 20 per cent, an upward departure the model permits.

There is also an outcome in which the court establishes the breach and still imposes no reduction. In the Kienhuishoving case the court expressly characterised the failure to inform about costs as a breach of the duties to inform in Section 6:230m DCC and following. It nonetheless saw no reason to reduce the costs of its own motion any further: the firm had already brought its invoices down from more than € 104,000 to € 55,000, and damages had been awarded on top of that. A service provider who moderates substantially of its own accord thereby removes the ground for a court-imposed reduction.

Damages as a third route

That same case shows the third route. Alongside the sanctions model and the unfairness test stands the agent's duty of care, and in Kienhuishoving it was decisive precisely because the fee clause survived. Under Section 7:401 DCC an agent owes the care of a diligent agent, and under Section 7:403 DCC the duty to keep the principal sufficiently informed during the engagement. A reasonably competent and reasonably acting lawyer is therefore expected to keep the client informed of the development of the costs, as Rule 17 also indicates. A failure to do so is a breach of the engagement.

The hurdle there is causation. For the period before the payment arrangement of October 2019 the client got nowhere. He had insufficiently substantiated that he would not have given the engagement or would have stopped it sooner, partly because his legal expenses insurer had already warned him that the budget was limited. For the period after it the court held otherwise. The firm had given insufficient information about the running costs during the appeal and had wrongly failed to give a cost estimate beforehand. Without that failure there was a fair chance that the client would have abandoned the appeal earlier. The loss was estimated at € 20,000, based on a 50 per cent chance that those costs would not have been incurred.

The Hague Court of Appeal reached the same test by another route in May 2026. Having found the fee clause transparent and not unfair, it observed obiter that failing to keep to the arrangement to invoice monthly is an attributable breach. Loss arises where the client can make it plausible that interim invoicing would have given him reason to end the engagement because of the mounting costs. In that case no such argument was advanced.

For practice this means that a client whose fee clause survives the unfairness test is not left empty-handed, and that a service provider who wins on the clause may still lose on the duty of care. Two courts of appeal apply the same test: would the client have stopped had he been informed in time? The assessment then runs through a loss-of-chance estimate rather than a percentage from the sanctions model.

When the invoice is awarded in full

Not every case ends in a reduction or an annulment. Two examples show what does work.

An architect sent his clients a quotation by email before the engagement, broken down by phase with the corresponding costs. The clients accepted it the same day. After the invoices went unpaid, the subdistrict court dismissed the claim for insufficient substantiation of the pre-contractual duty to inform, but the Amsterdam Court of Appeal corrected that (ECLI:NL:GHAMS:2023:1717): a quotation itemised by phase is a sound price indication. The full claim of € 11,594 was awarded after all.

In another case a consumer engaged tax advisers for a complex tax dispute. Alongside the hourly rates, an advance of € 50,000 excluding VAT had been agreed. According to the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2025:24) that advance sufficed as an indication of the costs to be expected: the consumer knew she was embarking on a course involving substantial costs. The duty to inform had been discharged; the court then assessed only whether the hours invoiced were properly substantiated.

The common denominator: in both cases the service provider had given the client a concrete picture in advance of what it was going to cost. That need not be a precise budget. A quotation itemised by phase, a substantial advance as an indication, a target price within the meaning of Section 7:752 DCC or a rough order-of-magnitude figure will do. What will not do is an hourly rate without any frame of reference.

What remains after the fee clause is annulled

Where the fee clause is set aside as unfair, the engagement cannot survive, because agreement on an essential element is missing. Section 7:405 DCC provides that in the absence of an agreed fee a reasonable fee is payable, but that provision cannot be invoked after an unfair fee clause has been annulled. That would negate the deterrent effect of the sanction, as the Supreme Court held in the Childcare judgment. Nor may the annulled term be replaced by a judicial estimate of the fee due.

That does not mean the service provider is necessarily out of options. In Supreme Court 4 October 2024 (ECLI:NL:HR:2024:1366) the Supreme Court held that after annulment a trader may in principle have a claim in undue payment or unjust enrichment. The obligation to compensate applies only in so far as that is reasonable, and the required dissuasiveness of the sanction stands in the way of full compensation. That is the second preliminary ruling of that day, alongside ECLI:NL:HR:2024:1355 on the order button.

How narrow that route is appears from two judgments of the same court within two months. In the case of 14 January 2026 North Holland District Court declared the engagement void. It rejected the reliance on unjust enrichment: the firm had said no more about the comparison of assets than that it had been impoverished, and asked for a sum to be fixed at the court's discretion. That does not sit with the prohibition on a judicial estimate. Supplementing the legal grounds, the subdistrict court read the argument as also invoking undue payment, and that partly succeeded. Because the annulment is the sanction on the unfair term, it co-determines the extent of the compensation "in so far as reasonable". Fifty per cent was awarded. In the case of 11 March 2026 no such claim was raised, and the outcome was dismissal plus repayment of the sum already paid.

The lesson is procedural: the restitution claim must be brought and substantiated with a concrete comparison of value. What EU law prohibits is that the court itself estimates a fee, not that a substantiated claim for value is awarded.

Where the fee clause is not unfair but merely non-transparent, the contract stands. Some courts still apply a price reduction in that case, but it is not automatic: both courts of appeal held that with a market-conform rate and no misleading conduct the full invoice is recoverable, despite the absence of a cost estimate. What decides the matter is not the information failure in itself, but whether the clause genuinely put the consumer in a worse position than the default statutory rules.

A fee clause that is the result of genuine individual negotiation falls outside the scope of Directive 93/13. In the police officer case the Supreme Court (5 December 2025, ECLI:NL:HR:2025:1856) confirmed that a bespoke rate with a specific discount arrangement falls outside the Directive's scope. Falling outside the Directive is not the same as falling outside Division 6.5.3 DCC.

The legislative history of the act aligning Dutch law with Directive 93/13 shows that the Dutch regime goes further than the Directive on this point: it applies to negotiated terms as well. The mandatory regime therefore cannot be evaded by pretending that a term was individually negotiated. It is, after all, not difficult to build variations into the conditions and let the consumer choose between them orally (Parliamentary Papers II 1998/99, 26 470, no. 5). The duties to inform in Sections 6:230l and 6:230m DCC apply in full as well.

In the same case the Supreme Court held that the duty to inform had been discharged, because the client had been clearly informed in advance of how the price would be calculated and of the services to be provided. A fee clause may therefore pass the test of Section 6:230l(c) DCC and at the same time be non-transparent within the meaning of Article 4(2) of the Directive. They are two standards that overlap without coinciding.

What does this mean for the engagement letter?

The analysis comes down to a handful of choices made when the engagement is entered into.

Give an order of magnitude rather than an exact figure. A quotation itemised by phase, a substantial advance, a target price or a minimum number of hours will do; an hourly rate without any frame of reference never will. Where the scale of the matter genuinely cannot be foreseen, record which part of the work can be estimated and agree when the position will be reviewed.

A figure mentioned is binding. In two cases the clause fell because the invoice turned out to be a multiple of what had been said in advance: € 750 against more than € 5,500, and five to ten hours against € 24,396.78. Anyone who gives an indication and then exceeds it must give timely written warning.

Never create the impression that someone else is paying. The statement that in a settlement the costs are usually borne by the employer, and the promise that any surplus on the advance would be refunded, tipped two cases into unfairness.

Keep informing during the engagement. That duty follows from Section 7:403 DCC and from Rule 17, and it survives a fee clause that passes the unfairness test. The firm that fell short on this point paid € 20,000 in damages while its clause stood. What a lawyer must account for in the invoice afterwards, even under a fixed fee, is discussed under the lawyer's invoice.

Moderate before the court does. In the Kienhuishoving case the court established the breach of the duties to inform and still refrained from a reduction of its own motion, because the firm had already brought its invoices down from more than € 104,000 to € 55,000.

For the client disputing an invoice the question runs the other way. What was said about the costs in writing beforehand, and how does the amount invoiced relate to it? The court assesses the fee clause of its own motion, even where the consumer does not invoke the Directive, and even where a disputes committee has already ruled. An hourly rate without any indication will almost always produce a transparency defect. Whether that also saves money depends on the question the courts of appeal put at the centre: was the rate customary, and was anything said that made the costs look lower than they turned out to be?

Cited case law

Court of Justice of the European Union

• ECLI:EU:C:2023:14, 12 January 2023 (C-395/21): a fee clause stating only an hourly rate does not enable the consumer to assess the financial consequences and is therefore not transparent.

Supreme Court of the Netherlands

• ECLI:NL:HR:2021:1677, 12 November 2021: partial annulment may serve as the sanction for breach of the duties to inform; the trial courts may draw up non-binding guidelines.
• ECLI:NL:HR:2022:861, 10 June 2022: a court may depart from such a guideline with reasons where the indicated sanction is not effective, proportionate and dissuasive.
• ECLI:NL:HR:2017:773, 21 April 2017 (Dexia): unfairness is assessed by comparing the consumer's contractual position with the statutory regime that would apply without the term, and as at the time the contract is concluded.
• ECLI:NL:HR:2023:198, 10 February 2023 (Childcare): after annulment of an unfair term no reasonable fee may be substituted, as that would negate the deterrent effect.
• ECLI:NL:HR:2024:1355, 4 October 2024: preliminary ruling on the order button of Section 6:230v(3) DCC, assessment of the court's own motion in default cases and the choice between full and partial annulment.
• ECLI:NL:HR:2024:1366, 4 October 2024: after annulment the trader may have a claim in undue payment or unjust enrichment, but only in so far as compensation is reasonable.
• ECLI:NL:HR:2025:1856, 5 December 2025: an individually negotiated rate with a discount arrangement falls outside Directive 93/13, but not outside the duties to inform of Division 6.5.2B DCC.

Courts of appeal

• ECLI:NL:GHDHA:2026:2248, 14 July 2026: a non-transparent fee clause with a market-conform hourly rate and no misleading suggestions is not unfair; the full invoice is recoverable.
• ECLI:NL:GHDHA:2026:942, 12 May 2026: a price term coupled with an undertaking to render interim invoices monthly is sufficiently transparent; the test applies as at the time of conclusion, not to whether the undertaking was performed. Failure to perform it is an attributable breach.
• ECLI:NL:GHARL:2025:4995, 12 August 2025: the lack of transparency is only one factor in the unfairness test; since Section 7:405 DCC likewise gives the consumer no sight of the total costs, a market-conform hourly rate does not impair his legal position. Damages do follow for the failure to give interim cost information.
• ECLI:NL:GHAMS:2024:3269, 26 November 2024: monthly invoicing does not replace the prior cost estimate; 25 per cent reduction under the guideline then in force.
• ECLI:NL:GHAMS:2025:1765, 8 July 2025: four or more breaches of essential duties to inform lead to a 40 per cent reduction.
• ECLI:NL:GHAMS:2025:1257, 13 May 2025: a cost estimate for sufficiently specified work is a target price under Section 7:752 DCC; the non-transparent clause for additional work is not unfair, and three breaches yield 10 per cent.
• ECLI:NL:GHAMS:2023:1717, 18 July 2023: a quotation itemised by phase is a sound price indication and satisfies the pre-contractual duty to inform.
• ECLI:NL:GHAMS:2023:440, 21 February 2023: compliance with the duties to inform demonstrated for the first time on appeal restores an invoice dismissed at first instance.
• ECLI:NL:GHAMS:2023:949, 25 April 2023: likewise; on the point of the cost estimate this line was left behind by the judgment of 26 November 2024.
• ECLI:NL:GHAMS:2025:24, 7 January 2025: an advance of € 50,000 may suffice as an indication of the costs to be expected.
• ECLI:NL:GHSHE:2025:822, 25 March 2025: the suggestion that the costs would match the advance makes the fee clause unfair; the advance must be repaid.

District courts

• ECLI:NL:RBAMS:2026:2670, 18 March 2026: where financial vulnerability is apparent, a bare hourly rate is a blank cheque; the fee clause is annulled save for the sub-engagement with a cost estimate.
• ECLI:NL:RBNHO:2026:2374, 14 January 2026: the contract is void and a reasonable fee excluded, but on a substantiated claim in undue payment 50 per cent is recoverable.
• ECLI:NL:RBNHO:2026:2941, 11 March 2026: a non-lawyer providing legal assistance is equally subject to the test; creating the impression that the employer will bear the costs makes the clause unfair.
• ECLI:NL:RBDHA:2026:4488, 4 March 2026: being bound by binding advice from the Bar's Disputes Committee does not preclude assessment of the fee clause of the court's own motion.
• ECLI:NL:RBMNE:2026:431, 21 January 2026: the duty to inform continues during the engagement; carrying on without informing the client of the financial consequences costs 20 per cent.
• ECLI:NL:RBNHO:2026:998, 21 January 2026: for an engagement concluded at the office, partial annulment in conjunction with the rules on unfair commercial practices leads to 20 per cent.
• ECLI:NL:RBMNE:2026:487, 4 February 2026: an organised system requires no order button; a website that encourages contact at a distance suffices.
• ECLI:NL:RBOVE:2024:2803, 28 May 2024: where the engagement was negotiated in person, the agreement concluded by email afterwards is not a distance contract.
• ECLI:NL:RBGEL:2025:3738, 7 May 2025: a young client who expressly asked for cost information and did not receive it justifies an upward departure to 60 per cent.
• ECLI:NL:RBNHO:2025:6572, 4 June 2025: the special relationship between the parties and the client's legal knowledge justify a downward departure to 10 per cent.

Juriaan de Vries — lawyer at Prime Law, specialising in corporate and commercial litigation. See the disclaimer.

See also

• Consumer protection
• Pre-contractual duty to inform for service providers: what must a lawyer disclose before the engagement?
• Right of withdrawal ignored: seller liable for the actual legal costs
• Car rental company's debt-collection cost clause set aside
• Supreme Court: contractual interest of 1.5% per month may be unacceptable