ECLI:NL:RBAMS:2025:9482

Uitspraak

judgment

AMSTERDAM DISTRICT COURT

Netherlands Commercial Court

NCC District Court

Case number: C/13/747331

Judgment

3 December 2025

Claimant in the original claim

WELTEN GROUP B.V.,

’s-Hertogenbosch (the Netherlands),

represented by H.J. van der Baan, G. Straub and F.J. Smeets, lawyers,

Defendant in the original claim

Defendant in the Underwriters’ claim

ONE TWO WORK B.V.,

Amsterdam (the Netherlands),

represented by D.F. Lunsingh Scheurleer, T. Drenth and A.M.M. Hendrikx, lawyers.

Intervening parties in the original claim

Claimants in the Underwriters’ claim

1.
Arch Insurance (EU) Dac,

Dublin (Ireland),

2.
Lloyd’s Insurance Company S.A.,

Brussels (Belgium),

3.
Axis Specialty Europe SE,

Dublin (Ireland),

4.
Zurich Insurance Europe AG,

as the legal successor to Zurich Insurance Plc,

Frankfurt (Germany),

represented by S. Derksen, I. Léger (member of the Paris Bar) and C.A. Janssen, lawyers.

The parties are referred to below as the Purchaser, the Seller and the Underwriters respectively. The target of the sale and purchase agreement between the Purchaser and the Seller (Welten
HoldingB.V.) will be referred to as the ‘Group’.

The term ‘lawyer’ has the meaning as defined in Article 3.1.1 NCC Rules of Procedure (NCCR).

1.Procedural history

1.1.

The proceedings to date are listed in the interim judgment given on the original claim and on the Seller’s motion for document disclosure in the counterclaim on 5 March 2025 (the ‘Interim Judgment’, publication number ECLI:NL:RBAMS:2025:1453).

1.2.

On 11 April 2025, the Court denied the Seller’s request to allow an interim appeal against the Interim Judgment.

1.3.

By judgment dated 14 May 2025, the Court allowed the Purchaser to introduce their subrogation claim which claim was submitted on 7 April 2025.

1.4.

On 15 May 2025, former counsel for the Seller withdrew from the case. On 28 May 2025, the Seller’s current counsel notified the Court that it would represent the Seller from that date onwards.

1.5.

On 23 July 2025, all parties submitted their briefs following the Interim Judgment. On that same date, the Seller submitted its statement of defence against the Underwriters’ subrogation claim and a conditional motion based on Article 843a Dutch Code of Civil Procedure (DCCP).

1.6.

On 31 July 2025, the Court gave the parties guidance on the issues which would be discussed at the hearing.

1.7.

On 19 August 2025, the Purchaser and the Seller submitted additional exhibits.

1.8.

The Court notified the parties on 25 August 2025 that preparations would be made for an audio recording of the hearing, and that the topic of transcription was to be discussed at the hearing.

1.9.

On 27 August 2025, all parties submitted their pleading notes.

1.10.

On 29 August 2025, the Court held a hearing (see the Court Record uploaded in eNCC on 2 October 2025).

1.11.

After the hearing, the Seller uploaded its revised notes, as directed by the Court, and the Court sent counsel an audio recording of the hearing.

1.12.

The parties notified the Court on 18 September 2025 that no settlement had been reached. Subsequently, judgment was set for 5 November 2025.

1.13.

On 15 October 2025, counsel to OTW uploaded a verbatim transcript of the 29 August 2025 hearing and notified the Court that the parties were in agreement on the transcript and had no comments on the Court Record.

1.14.

On 23 October 2025, the Underwriters informed the Court that they had entered into a Settlement Agreement with the Seller and irrevocably withdrew all of their claims.

1.15.

On 31 October 2025, the Court confirmed the withdrawal of the Underwriters’ claims and postponed judgment until today.

2.The facts

The Court refers to the facts in the Interim Judgment.

3. The claims and the motion

3.1.

The Purchaser’s claims are listed in the Interim Judgment. At the hearing the Purchaser reduced its monetary claim to EUR 31,300,000.

3.2.

Due to the Underwriters having withdrawn from the proceedings as a result of the Settlement Agreement, no further discussion on their subrogation claim against the Seller is needed. As the Seller stated in its letter of 23 October 2025 – which is uncontested – that no decision on costs was needed, the Court will not give a decision on costs in connection with the subrogation claim.

4.The Interim Judgment

4.1.

The Court reiterates its ruling in the Interim Judgment:

that the Seller is fully liable for any damages resulting from the breach of Warranties 18.1 and 18.2 (para. 4.31),
that it is likely that if the Seller had disclosed the actual underperformance of the Group (as a result of the incorrect deferrals and provision for holiday accruals) prior to Completion, the Purchaser would – at least – have renegotiated the Purchase Price (para. 4.41).

4.2.

The Court allowed all parties to submit a brief on the issue of quantum, and allowed the Seller to express its view on the next steps in the counterclaim proceedings.

5.Discussion on the counterclaim

The Seller withdrew the counterclaims. Therefore, no further discussion is needed in that regard.

6.Discussion on the quantum of the Purchaser’s claim

The Seller’s request to reverse binding decisions

6.1.

In its brief following the Interim Judgment, the Seller requests the Court to reverse several decisions made in the Interim Judgment.

6.2.

Under Dutch procedural law, a court is bound by an interim decision in a case if it has unequivocally and unconditionally decided on a point in dispute. However, as the Supreme Court has also ruled, this is subject to the requirements of due process. Accordingly, if that decision is founded on an incorrect legal or factual basis, the court may reverse that decision in order to avoid a final judgment on an unsound basis, provided it – prior to the reversal – gives the parties an opportunity to respond. This applies not only where the court receives new facts or evidence presented before it, but also where the court is convinced that the interpretation of certain documents on which it relied in its interim judgment, is – after further review – untenable.^[1]

6.3.

The Court rejects the Seller’s request and will not reverse any decisions made in the Interim Judgment. The reason is that - although the Court acknowledges the importance of truth-seeking as opposed to raw judicial power (
machtswoord, in the Seller’s words) - the Court is simply not convinced that the decisions in the Interim Judgment were based on an unsound foundation. The Court is not obliged to explain its reasoning on the Seller’s request, and a reference to the Interim Judgment is sufficient.^[2]Nevertheless, the Court will share the following observations:

 The Seller identifies several alleged minor inaccuracies in the Interim Judgment, but does not discuss all the facts which support the Court’s decision – most notably the Teams messages exchanged within the Group’s finance team. It alleges it is barred from doing so by the Court’s instruction that it will disallow attempts to replead points already decided on,^[3]but that is disingenuous. Obviously, this instruction in no way bars the parties from exercising their right to seek reversal on the grounds listed in the Supreme Court case law referred to above. Instead, it seeks to avoid relitigating issues more generally if there are no good reasons to do so.

 Even if certain decisions are based in part on an inaccuracy (for example, the date of a document), this does not warrant the conclusion that the decisions are flawed or that their basis is unsound.

 The inaccuracies alleged by the Seller’s counsel are based on documents that existed on the date of the Interim Judgment and were discussed at length in that judgment (the full 3 February 2023 Excel file^[4]had already been in the Seller’s possession for two years).
Moreover, the Seller’s additional comments on certain pages not previously submitted to the Court (containing numerous accounting entries and figures) miss the point: it is not relevant for determining the Seller’s liability whether the Purchaser might perhaps – after a deep dive into the underlying numbers – have inferred certain deferrals or provisions. Nor is it relevant how the Purchaser – confronted with the deferrals post-Completion – dealt with the issue in subsequent years. Instead, the pivotal questions are (i) whether the deferrals constituted a change of accounting policy, which should have been disclosed by the Seller, and (ii) whether the CFO’s statement to the Purchaser regarding the Group accountant’s approval of the provision was true. Both questions were conclusively addressed in the Interim Judgment.

 This explains why the Seller’s expert opinion on Dutch accounting law and regulations (Ms Harmsen of TOON Advocaten^[5]) is irrelevant. The opinion does not discuss the key issue: whether the Seller’s statements to the Purchaser on consistency with past accounting practices and accounting approval were true (in fact, they were not). Instead, the opinion focuses on a separate issue, which is not relevant: whether the accountant should have allowed the deferrals and holiday accruals under Dutch accounting laws and regulations. The expert also refers to past instances where the Group deferred costs, but the only specific example in the expert opinion is the Kunners project, which was dealt with by the Court in the Interim Judgment.^[6]

 The Seller’s next allegation is that the Court violated due process, evidentiary rules or other procedural rules (such as the principle of hearing both sides) by not ordering [the CFO]’s testimony to be taken in court.^[7]The Seller’s point is that [the CFO] could have explained certain messages in her testimony. However, the allegation is plainly wrong on the law. Prior to the Interim Judgment, and even after the Interim Judgment, the Seller said nothing specific about any communications that might help interpret the messages and provide context, and the Seller presented no information about anything that a witness could testify about from first-hand knowledge or observation. Accordingly, the Seller’s position was unsubstantiated and the right approach was to read the messages and interpret them in the context of all available materials in the case, as the Court did in the Interim Judgment. The Seller actually did refer at the first hearing to these messages and the written record of [the CFO]’s interview.^[8]The messages and the record were part of the materials reviewed by the Court in the Interim Judgment. If the Seller’s position now is that it needed [the CFO]’s testimony in court in order to present a defence regarding the messages, it should have made a substantiated and specific request to that effect or a request to re-interview [the CFO]. There was ample time to do so between the date when the Purchaser referred to the messages (on 11 September 2024^[9]) and the date of the first hearing (20 January 2025). However, the Seller did not submit such a request and took no further action in this context.^[10]^[11]Accordingly, there was no reason for the Court to focus on this point, particularly since the Seller had already interviewed [the CFO].

 The Seller’s Kroll expert report commenting on the reports by Deloitte, Eight Advisory and PwC^[12]is unconvincing and has been rebutted by the Purchaser’s experts.^[13]As the Court ruled in its Interim Judgment on the basis of various messages exchanged between members of the Group’s finance team: the deferrals and the incorrect provision for holiday accruals were not merely an oversight, accounting error or P13 adjustment, but were done deliberately to conceal the Group’s lower profitability in the final quarter of 2022.^[14]The Seller’s expert is also incorrect where he argues that the 388k referral booking should be excluded from the deferral bookings established by the Court, because this booking was made post-Completion. As shown on page 40 of the Kroll expert report^[15]the “Net Balance” of the deferral bookings before closing was EUR 585k, but this was corrected to the lower number of EUR 388k post-Completion.

 The same expert’s comment on causation (that the accounting ‘errors’ do not impact future revenues and cash flow, in the actual scenario or the counterfactual) is irrelevant. The parties relied, at least generally, on various factors such as EBITDA to determine the purchase price. The ‘errors’ were not simply accountancy issues: they - intentionally - gave a wrong impression by hiding a real development that indeed affected the Group’s cash generating potential and its value.

 The Court carefully reviewed the Seller’s expert opinion on attribution of knowledge.^[16]Although the Court generally agrees with much of the opinion’s analysis, such as the factors to be considered and the weight given to several factors, the Court’s overall weighing of the factors is different. The expert concluded “
When the foregoing factors are weighed together, the scale clearly tips in the direction of non-attribution of such intent”. By contrast, the Court’s analysis gives greater weight to the nature of the agreement (the Share Purchase Agreement) and more specifically the Warranties. The issue in this case is whether the Warranties were breached by the Seller. The Warranties were given by the Seller. The Seller is the entity guaranteeing the Purchaser that the warranties are “
true, accurate and not misleading”.^[17]The Seller is the entity guaranteeing that “
All information contained in the Agreement and the Data Room (…) are correct, accurate and not misleading.” and that “
The Data Room includes all information which is likely to be material to a purchaser of the Company” (Warranties 18.1 and 18.2). The Warranties would be worthless if the Seller were not liable for senior Target/Group officers intentionally providing inaccurate and misleading information. The Seller is the entity (i) vouching for the accuracy of the information and (ii) causing this information to be provided directly by the Group (or its senior officers) (iii) without checks on the veracity of the information (nothing was said about any checks). In sum, the Seller set the sales process in motion, asking the Purchaser to collect information directly from the Target/Group, giving Warranties without verification, ostensibly (the Seller insists) creating a situation where it had no knowledge of what was going on, and effectively flying blind into the mountain in the event of fraud by the Target/Group. If the Seller were to escape liability under these circumstances because of non-attributability, “
it would obviously create moral hazards and perverse incentives and undermine the business integrity of an M&A process”, as the Court noted in the Interim Judgment.^[18]To avoid the hazards and incentives, the Seller’s duty was to set up the process so as to see the mountain ahead and avoid it. In these specific circumstances, attribution is warranted.

 The fact that – as pointed out by party expert Katan – during the negotiations on the SPA the Seller added the words “
on the part of the Seller” to Article 11.5.1 of the SPA does not warrant the conclusion that the most obvious meaning of this Article is that the Seller’s liability for fraud by Group employees (the Target) was excluded.

o The Court decided in the 17 July 2024 judgment^[19]that,
as a rule, it is appropriate to give decisive weight to the most obvious text-based meaning of the provisions in the SPA, read in context. The Court will do so below. But where construction on this basis does not provide a solution to the issue, the Court must also take into account what a reasonable enterprise of the same kind as the parties would have understood as the language of the SPA to mean in the same circumstances.

o The words “
on the part of the Seller” were added to several provisions of the SPA, and could therefore also be understood to clarify that it meant “fraud by the Seller” instead of “fraud by the Purchaser”. It must have been clear to the Seller that the Purchaser would have never signed the SPA if Article 11.5.1 SPA were to mean that the risk of fraud by Group employees (employees of
the Seller’ssubsidiary at the time) would be borne by the Purchaser and the Underwriters and not by the Seller.

o Although the specific Warranties which were breached by the Seller were not knowledge-qualified, there was a definition in the SPA of “Seller’s Knowledge”, which read: “
Seller's knowledge or any similar expression means, with respect to any fact, matter or circumstance,the actual knowledge of the Seller, [the CEO] and [the CFO]at the date of this Agreement and the Completion Date, and theknowledge they should have had^[20]after having made due enquiries by each of them into the relevant subject matter with the relevant persons responsible for the matters in question within the Group Companies”. This supports the Purchaser’s view that adding the words “by the Seller” does not exclude liability for fraud by Group employees.

o Moreover, Article 11.5.1 SPA must be viewed in the context of the entire transaction.^[21]The risks associated with a breach of warranties were divided into risks to be covered by the W&I Policy (non-fraudulent breaches of warranties) and risks to be covered by the Seller (fraudulent breaches of warranties). This division of risks does not indicate that the Seller can simply exclude liability for fraudulent breaches of warranties by adding the words “
on the part of the Seller” to the SPA. That is not what a reasonable enterprise of the same kind as the parties would have understood the language of the SPA to mean in the same circumstances.

Furthermore, it means that the wording of the W&I Policy (which was provided to the Seller prior to Signing^[22]) is relevant here as well. Article 8.1 of the Policy^[23]reads as follows:

“The Underwriter and the Coverholder are only entitled to subrogate if the payment under the Policy or Loss arose in whole or part out ofthe Seller’s Group, its respective present and former directors, managing directors, supervisory directors, officers and/or employees’ fraud(bedrog) as meant in article 3:44 Dutch Civil Code (Burgerlijk Wetboek) and then only for that part of the payment as a direct consequence of such fraud. For the avoidance of doubt, the Underwriter shall only exercise such rights of subrogation against the Seller, but not against any of its affiliates or their respective directors, officers and employees.”

A reasonable enterprise of the same kind as the parties would have understood this Article, in the same circumstances, to mean that the Underwriters would subrogate in the Warranties claim if fraud was committed by “
the Seller’s Group […] and its employees” (including the Group’s CFO). As this fraud exception is mirrored in the SPA, a reasonable enterprise of the same kind as the parties would not have understood the language of the SPA, in the same circumstances, to mean that the phrase “
on the part of the Seller” excludes the Seller’s liability for fraud committed by the Target’s CFO.

Quantum

6.4.

In the Interim Judgment, the Court provided an opportunity to all parties, including the Underwriters, to comment on the following issues:

the expected outcome of the hypothetical renegotiation process given the Court’s decision on the 2022 EBITDA and the multiple proposed by the Purchaser, both in terms of the lower EBITDA and the multiple to be applied,
the other items of the Purchaser’s claim for damages,
the reasonable costs, expenses and tax incurred in obtaining the sum recovered from the Underwriters.

Contributory negligence

6.5.

As its most far-reaching defence the Seller argues that the Purchaser had a duty to enquire (
onderzoeksplicht), and that, if the Purchaser had complied with this duty and reviewed the documents provided by the Seller (most notably the 3 February 2023 Excel file), the Purchaser would have been aware of the deferrals and the holiday accruals issues. In the Seller’s view, any harm allegedly suffered was caused by the Purchaser’s failure to enquire or to review, which constitutes contributory negligence. Consequently, any claim for damages should – according to the Seller – be reduced to zero.

6.6.

The Supreme Court’s case law clearly states that where a party fails to comply with a duty to disclose, the principles of reasonableness and fairness generally preclude the non-compliant party from arguing that the counterparty had a duty to enquire and that, failing due enquiry, the non-compliant party has no liability for its failure to disclose. However, there is a clarification: the non-compliant party is allowed to argue that the amount of damages must be reduced because the misunderstanding that caused the harm is, in part, a result of the counterparty’s failure to enquire.^[24]

6.7.

In this case, the Seller provided warranties that all information in the Data Room was correct and not misleading and that all information likely to be material to Purchaser was in the Data Room. This contractual duty was breached, not negligently, but intentionally, as the Court held in the Interim Judgment. This generally narrows the scope for allowing the Seller to rely on contributory negligence.

6.8.

Moreover, the enquiry by the Purchaser was limited to a ‘top-up’ due diligence. The specific document relied on by the Seller (the 3 February 2023 Excel file) is – as the Court pointed out above – not an appropriate way to disclose to the Purchaser deferrals contrary to Group accounting practices or a holiday accruals provision without the Group accountant’s approval. That Excel file is so voluminous and there was so little guidance to assist in identifying the problem that a reasonable enterprise of the same kind as the parties would not have discovered the problem. Accordingly, the Purchaser’s failure to discover it here is consistent with what a reasonable enterprise of the same kind as the parties would have done in the same circumstances. For these reasons, the Court’s opinion in this case is that there is no conduct by the Purchaser that warrants any reduction for contributory negligence.

Loss of chance doctrine does not apply

6.9.

The Seller’s position is that the Purchaser's damages, at most, consist of the loss of a chance for a more favourable negotiation outcome. Therefore, the Seller argues, if there are any losses, the doctrine of the loss of chance (
kansschade) must be applied to assess those losses, resulting in a lower award equal to the total damages multiplied by the likelihood of the damage actually occurring (a percentage).

6.10.

The Supreme Court’s loss of chance doctrine means that under certain circumstances the Court must quantify damages by balancing the probabilities (the ‘goede en kwade kansen’ in Dutch). However, this doctrine only applies where (i) causation is uncertain (did a breach of contract cause harm?) and (ii) the probability of various counterfactuals, involving more or less harm, cannot be ascertained.^[25]

6.11.

In this case, there is no uncertainty as to whether the breach of the warranties resulted in damage (it certainly did), nor are there any insurmountable difficulties in ascertaining the probability of various counterfactuals. Obviously, it is no easy task to determine which counterfactual is the most likely, in balancing the probabilities, but the parties have submitted reports that give the Court much guidance and assistance. Along these lines, in the Interim Judgment the Court ruled that if the Seller had disclosed the actual underperformance of the Group (deferrals and holiday accruals) prior to Completion, the parties would – at least – have renegotiated the Purchase Price.^[26]That of course says little about the outcome of such renegotiations. It is now the Court’s task, with all materials submitted to date, to balance the probabilities and to determine which counterfactual has the highest probability, and, accordingly, what is the most likely outcome of a renegotiation process.

Outcome of the hypothetical renegotiations

6.12.

The damage suffered by the Purchaser must be quantified by comparing the actual situation (i.e. the Purchaser completing the Transaction) to the counterfactual (where the Seller accurately informed the Purchaser of the Group’s financial situation prior to Completion). At the outset, the Court reiterates that the quantification involves weighing and balancing the probabilities amidst many uncertainties, and that this reflects the ordinary process of adjudicating such disputes in these circumstances under the applicable rules.

6.13.

As the Court ruled in the Interim Judgment the most likely counterfactual scenario is that the parties would have renegotiated the Purchase Price. While it is true that the misrepresentations and the fraud committed by the Seller would have entitled the Purchaser to walk away from the deal at that time, the Court does not consider it likely that it would have done so. At the time, the Purchaser was very motivated to close the deal – even when faced before Signing with EUR 599k of underperformance due to the number of FTEs in December 2022 falling short of budget.^[27]Moreover, [Purchaser’s statutory director] stated at the hearing that the Purchaser - to double-check the Group management’s expectations of potential future earnings prior to Signing and Completion - spoke to numerous people responsible for long-term strategy at Rabobank, ABN Amro and EY, who confirmed that banks and insurers were stampeding into recruiters, like the Group, for people.^[28]The Purchaser was also actively seeking other growth opportunities before Completion.^[29]If, in the counterfactual, it had learnt of further disappointing developments in the Group prior to Completion, this may have given the Purchaser pause, but this information would not have deterred it from closing the deal provided that the purchase price was renegotiated, considering:

 the fear of losing the Group to a competitor,^[30]

the impact, on the Purchaser’s reputation, of reneging on the deal, and
the fact that not all undisclosed information would affect the Group’s revenue generating potential, as will be discussed below.

6.14.

Similarly, the Seller would have been very motivated to renegotiate in order to close the Transaction. While holding onto the Group or trying to sell the Group to another buyer would not have been impossible, this would have been unattractive given the advanced stage of the deal process with the Purchaser, the Seller’s consistent commitment to an exit, and potential questions that might have arisen in that situation concerning the termination of this deal process.

6.15.

For these reasons, the Court is certain that in the counterfactual, the parties would have renegotiated. The next issue the Court needs to resolve is what the purchase price would have been at the conclusion of these renegotiations in the counterfactual.

6.16.

It is likely that in the counterfactual the parties - professionals in the private equity business - would have initiated the renegotiation of the purchase price on the basis of objective financial criteria, as far as possible and at least as a baseline. More particularly, they would have focused on the effect the misrepresentations regarding (a) the deferrals and (b) the provision for holiday accruals might have had on potential future Group earnings, because this is the key element in assessing the value of a company. As there would not have been enough time to do a full-fledged DCF analysis (the deal process was at an advanced stage and subject to time pressure), the most likely method of determining the amended purchase price in the counterfactual would have been to infer the EBITDA and multiple from the actual Purchase Price, consider adjustments to the EBITDA and multiple on the basis of the various items in dispute in these proceedings, and calculate the amended purchase price.

6.17.

The issue as to what the multiple ought to be would have been part of the renegotiations, as otherwise the impact of the misrepresentations on the Group’s future earning potential might not be fully captured. In the Court’s view, if the parties had renegotiated, it is likely they would have ended up, albeit reluctantly, with the same multiple. Changing this parameter would have been to change the Transaction itself fundamentally. A fundamental change would have been very difficult for the Seller to accept and would have made both parties vulnerable to the counterparty’s demands to revisit numerous aspects that the parties would have had no time to explore in any depth. At the end of the day the Purchaser, to get the deal done, would have acknowledged the Seller’s core interest on these points.

6.18.

As to the various disputed bookings, it is likely that the parties in the counterfactual would have exchanged more or less the same arguments in the renegotiations as they did in these proceedings. Their arguments will be outlined and discussed below.

a) Incorrect deferrals

6.19.

The Purchaser’s argument is along these lines.

Deferred costs can have implications in multiple accounting years. As such, the deferrals made by the Group go beyond mere accounting treatment, and affected the Group’s future earnings potential. This also applies to the deferrals relating to a difference in rates (EUR 198k) and a double (deferred) booking (EUR 115k). These bookings relate directly to an impermissible change in accounting methods.

6.20.

The Seller’s argument is along these lines.

The deferrals did not impact future earnings capacity, as they consisted of accounting errors and costs which were expected to be offset by revenue generated in the next year. The total amount of allegedly incorrect deferrals (EUR 1,261k) should be split into the following bookings:

 EUR 313k should be treated as an accounting error (P13 booking), as the Court did in paragraphs 4.18 and 4.19 of the Interim Judgment:

o EUR 198k relates to an actual adjustment for the difference between the billing rate and the (much lower) cost rate.

o EUR 115k relates to a full reversal of an incorrect booking.

 EUR 949k consists of booking entries resulting from applying the matching principle:

o EUR 388k is a revenue adjustment relating to study hours which the Group's management expected to invoice once the trained employees were placed at the Group’s clients.

o EUR 560k was an adjustment of costs paid in Q4 2022 which were booked under 'prepaid expenses' in the balance sheet.

6.21.

The Court considers it likely that the parties would have discussed all of these items in their renegotiations and would have focused on the items which could have a lasting effect on the revenue-generating potential. This certainly applies to the EUR 388k (study hours) and EUR 560k (prepaid expenses), but not to the EUR 198k (billing rate) and EUR 115k (incorrect booking), which – on closer inspection – could reasonably be categorised as accounting errors and therefore non-recurring. Accordingly, in the counterfactual, accounting errors would have been a reasonable basis for the Purchaser to accept the Seller’s position on the EUR 198k and EUR 115k items, which the Purchaser would have done, in an effort to resolve the issues and get the deal done (as in fact the Purchaser did in the actual scenario with regard to the P13 items and the EUR 599k item). By contrast, for the same reasons, the Seller would have had to acknowledge the EUR 388k and EUR 560k items as having a material impact on the business, as far as the parties could discern the downward trend at the time. The material impact exists because the gap between the actual figures and the forecasts was the result of structurally ‘lower hires, lower productivity and lower fees’, combined with higher costs, and not simply a three-month delay in seconding employees to clients. The Seller’s acknowledgement of the material impact would have made an accommodation for the Purchaser’s benefit both warranted and inescapable. The Seller might have sought to rely on the matching principle, but this argument would not have carried much weight, given the material impact. For these reasons, the deferrals would, in the counterfactual renegotiations, have been included in the purchase price adjustment for the amount of EUR 949k.

b) Incorrect holiday accruals

6.22.

In its pleading notes for the 29 August 2025 hearing,^[31]the Purchaser acknowledges that it was aware of the amount of the holiday accruals provision, as this was included in the full version of the 3 February 2023 Excel file. It merely states that the point is that the Seller failed to inform the Purchaser that the provision was recorded below historical levels and against the auditor’s explicit prior advice.

6.23.

The Seller responded by arguing that this is an accountancy issue and that provisions for holiday accruals impact both the P&L (and accordingly the EBITDA) and the balance sheet, but not the future earnings potential or cash flow.

6.24.

The Court fails to see how this particular holiday accruals provision could materially affect the Group’s long-term earnings potential. A provision is merely an estimate of the amount to be paid out on accrued holidays and upon the expiration of any remaining rights to take holiday time (see page 19 of the Interim Judgment). Essentially, it is an accounting issue affecting the EBITDA, but not any future revenue potential. In addition, and even more importantly, the Purchaser was familiar with the provision itself, and the only undisclosed point was the lack of auditor approval in the special circumstances of a newly acquired subsidiary needing to be fully incorporated in the Group and its practices (which were different from the subsidiary’s prior practices). Auditor approval is a matter of accounting policy, especially in these circumstances. For these reasons, the Court considers it likely, in the counterfactual, that the parties would have agreed the accountants would resolve the issue, so that the issue did not warrant an adjustment of the purchase price.

c) Reported underperformance

6.25.

The Purchaser argues that it would not have agreed to the reported underperformance of EUR 599k, if it had known about the actual underperformance. It points to the Kroll expert report which recognises that the reported underperformance had a direct cash impact and therefore should have had implications for the valuation.

6.26.

According to the Seller, the Purchaser failed to explain how this would have been included in any renegotiations in the counterfactual, where the actual disclosure of this underperformance did not lead to renegotiations.

6.27.

As the Court ruled in the Interim Judgment – as to the Seller’s liability – the Purchaser would not have accepted the underperformance if it had been fully aware of the

incorrect deferrals and holiday accruals provision. However, in the quantum phase (the renegotiations in the counterfactual), the Court considers it likely that the Purchaser, in an effort to get the deal done, would have been more flexible, bearing in mind its position in the actual scenario (accepting the underperformance). The Court considers it conceivable, as part of the most likely counterfactual, that the parties would have settled on a EUR 299.5k adjustment of the purchase price, which is 50% of the EUR 599k underperformance.

Conclusion

6.28.

The above leads to the conclusion that in the renegotiations in the counterfactual:

the parties would have used the same multiple
the purchase price would not have been adjusted for accounting issues, but only for misrepresentations which could reasonably affect the Group’s future revenue generating potential (EUR 949k in incorrect deferrals)
the parties would have agreed on a EUR 299.5k (50%) adjustment for the underperformance accepted by the Purchaser in the actual scenario.

6.29.

These decisions result in the following adjustment to the purchase price: 8.2 (multiple) x EUR 1,248.5k (=EUR 949k + EUR 299.5k (50% of EUR 599k)) = EUR 10,237,700. The Court considers it likely that the parties would have agreed this adjustment to the purchase price was reasonable, as:

t would provide substantial compensation to the Purchaser for the misrepresentation actually affecting the Group’s future earning potential, and

it would result in a purchase price which is not too far below the floor price of EUR 100 million as insisted on by the Seller from the outset of the transaction process.

The parties would each have concluded they were on solid ground in entering into an agreement along these lines and in explaining the agreement to their respective boards or other supervisory bodies, to their investors and to the public.

6.30.

The Court will award EUR 10,237,700 in damages to the Purchaser, which amount is to be reduced by the amount paid by the Underwriters to the Purchaser under the Policy (EUR 6,750,000). The statutory interest on this amount will be calculated from the date of Completion, as the obligation in question relates to the compensation for loss as referred to in Article 74(1) of the Dutch Civil Code (DCC) and this obligation was not performed forthwith (Article 6:83(b) DCC).

Other damages

6.31.

In the Interim Judgment, the Court allowed the parties an opportunity to comment on the other items of the Purchaser’s claim for damages:
a) ‘penalty interest rate’ as a consequence of the misrepresentation of the 2022 financials,
b) the costs of the Eight Advisory Report and Deloitte’s damages assessment, and
c) reasonable costs, expenses and tax incurred in securing the settlement with the Underwriters.

a) The damages relating to the Purchaser’s penalty interest rate

6.32.

The Seller’s primary defence against this claim is that the damage was not directly caused by the Seller’s wrongdoing and cannot be attributed to the Seller.

6.33.

The Court disagrees. The Seller knew or should have known that the Purchaser needed to make financial arrangements to pay the Purchase Price. It also should have known that these arrangements were dependent on financial covenants based on the Group’s EBITDA, as is customary in these types of transactions.

6.34.

The term sheets submitted by the Seller show that the Purchaser actually gave certain financial covenants to the banks regarding the Group net-debt to EBITDA ratio. More specifically, the Purchaser sent the banks the Seller’s 2022 EBITDA estimate. The Seller argues that the Purchaser should have disclosed more recent figures to the banks, but also states that the Purchaser offered to do so, but that the banks did not address the issue due to the 'low starting margin' of 1.5%.^[32]In the Court’s view, if the Seller had not given the Purchaser inaccurate estimates, these estimates could not have found their way to the Purchaser’s banks. Accordingly, the Purchaser’s harm in the financial arrangements being based on inaccurate 2022 EBITDA estimates is attributable to the Seller.

6.35.

As the Court observed in the Interim Judgment, the Purchaser states that it obtained a waiver from the lender with respect to the financial covenants, so that its harm is limited to additional costs for obtaining this waiver (EUR 22,500) and a higher interest rate. In its post-judgment brief, the Purchaser did not substantiate why it must pay penalty interest despite the waiver. This part of the claim will therefore be denied. The costs for the waiver (EUR 22,500) and the legal costs in obtaining the waiver (EUR 11,306) were not sufficiently disputed by the Seller^[33]and will therefore be awarded.

6.36.

The Seller also did not sufficiently dispute the Purchaser’s margin damages calculation of the higher interest rate which will be applicable because of the incorrect 2022 EBITDA estimate (1.5% instead of 1.35%). However, the Seller does dispute that this should result in liability for interest payments to be made after 2023.

6.37.

The Court notes that the margin damages calculation covers repayment dates from July 2023 to January 2027. Some of these dates are currently in the future, and given the arrangements it is uncertain whether the higher interest rates will actually apply to this entire period. Moreover, the Purchaser did not sufficiently substantiate – in light of the Seller’s defence on this point – that the 2022 EBITDA continues to be the direct cause of the financial covenant violations beyond 2024. It follows from the Deloitte report that at the time of the Transaction (and therefore at the time of the financial arrangements), the projections ended in fiscal year 2024. What the EBITDA would do beyond 2024 was uncertain at that time. Therefore, the Court will only award compensation for margin damages in 2023 and 2024 (until repayment date 20 January 2025). This is EUR 102,455.30.

6.38.

This brings the amount the Court will award to EUR 136,261.30 (EUR 22,500 + EUR 11,306 + EUR 102,445.30). As it is unclear at what dates the costs related to the financial arrangements were due and paid by the Purchaser, the statutory interest will be awarded from the date of this judgment.

b) The Deloitte and Eight Advisory invoices

6.39.

The Court notes that the Purchaser – despite the opportunity to do so – failed to provide a specification of the work done by Deloitte and Eight Advisory. This specification is required, as these costs qualify as expenses incurred in assessing loss and liability under Article 6:96(2)(b) DCC. Under this Article compensation for such costs can only be awarded where (i) the costs were reasonably necessary to assess and establish damage and liability and (ii) the cost amount is reasonable. This two-fold reasonability test can only be done if the work that caused the expense is described in sufficient detail. In this case, the invoices relied on by the Purchaser^[34]do not provide any detail at all, whereas the Purchaser had ample opportunity to provide such detail before or after the Interim Judgment. The lack of specification of the work done by Deloitte and Eight Advisory prevents the Seller and the Court from applying the test above. The claim will therefore be denied insofar as it relates to these invoices.

Ad c) Reasonable costs, expenses and tax

6.40.

In para. 5.9 of its brief, the Purchaser wrote that it had been able to recover part of its damages as a result of its settlement with the Underwriters, including the costs incurred by the Purchaser in obtaining the sum from the Underwriters. It consequently withdrew its claim in this regard. Therefore, the Court need not address this claim.

Enforceability

6.41.

The Seller requested the Court to deny the Purchaser’s request for a declaration that the judgment is enforceable notwithstanding appeal.

6.42.

It is customary in the Netherlands for courts, in accordance with Article 233 DCCP, to declare their judgments to be enforceable pending appeal if the party asking for the judgment so requests, without any need for the judgment creditor to provide security. An exception to this rule may be justified where the judgment debtor’s interest in maintaining the status quo pending appeal, or its interest in security being provided, outweighs the judgment creditor’s interest in immediate enforcement and in not having to provide security.^[35]In this case the Seller did not rely on any circumstances justifying such exception. It failed to elaborate on the judgment’s “
great impact on the Seller and all of its stakeholders”^[36]. In particular, the Seller did not provide any figures or other substantiation to support its argument that it would experience undue hardship if a judgment awarding a small portion of the original claim were to be enforced pending appeal. In fact, given the above reasoning and the settlement with the Underwriters, the amount actually awarded in this judgment is less than 10% of the original claim. Therefore, the judgment will be declared enforceable notwithstanding appeal.

Conclusion

6.43.

The Purchaser’s claims will be awarded, except where the Court ruled otherwise above.

6.44.

A substantial part of the claims will be awarded. Therefore, the Seller is the unsuccessful party and will be ordered to pay the Purchaser’s costs incurred in these proceedings. These costs are calculated as follows:

legal fees: EUR 27,000 (6 x EUR 4,500 in legal fees)

court fee:
EUR 18,287

Total: EUR 45,287

Also, the claim for payment of post-judgment costs will be allowed as specified in the decision below.

7.Decisions

7.1.

The Court declares:

that the Seller breached the Warranties included in Annex 10 of the SPA, more specifically Warranty 18.1 and Warranty 18.2,
that the Seller is liable towards the Purchaser for the damages caused by these breaches, which – having received compensation from the Underwriters – results in the Purchaser being entitled to a compensation in the amount of EUR 3,623,961.30, plus statutory interest on EUR 3,487,700 as from 23 February 2023, and on the remainder from the judgment date to the date of payment.

7.2.

The Court orders the Seller:

to pay the Purchaser the sum of EUR 3,487,700 in damages, plus statutory interest as from 23 February 2023 to the date of payment,
to pay the Purchaser the sum of EUR 136,261.30 in damages, plus statutory interest as from 3 December 2025 to the date of payment,
to pay the costs of these proceedings, quantified at EUR 45,287.00 for the Purchaser plus the post-judgment costs of EUR 178, to be paid within seven days after this judgment, under the provision that if these costs are not paid promptly, statutory interest will be due from the eighth day onward to the date of payment; to be increased by EUR 92 and the costs of service if the Seller fails to comply and this judgment is served.

7.3.

The Court declares that paragraph 7.2 of this judgment is enforceable notwithstanding appeal.

7.4.

The Court denies all other claims.

Done by L.S. Frakes, C.W.D. Bom and N.A.J. Purcell, Judges, assisted by W.A. Visser, Clerk of the Court.

Issued in public on 3 December 2025.

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