If you have received a summons: advice from a Dutch lawyer
If a party has a monetary money claim against another party, but the other party refuses to pay, then there is nothing else than to start legal proceedings, in which the plaintiff shall claim that the defendant shall be ordered to pay his debt. Legal proceedings – either summary proceedings or proceedings on the merits – always start with a summons, which is delivered by a bailiff. But what exactly is a (writ of) summons, and what should you do if you receive one? Dutch litigation lawyer Hidde Reitsma explains.
A writ of summons is a notice to appear before a Dutch court.
A writ of summons (hereinafter: “summons”) initiates the legal proceedings, and is always delivered (in legal terms: served) by a bailiff (a process server). The bailiff makes a written report of the delivery, noting that in the summons. So the summons indicates when, to whom and how the summons was delivered, and includes a summons to the defendant to appear in court at a certain date and at a certain court. By the way, a remarkable fact is that the summons indicates to whom the document was delivered, but that the bailiff is not authorised to verify the identity of the person to whom he delivers. This may in practice lead to awkward evidential problems.
Being summoned in the Netherlands: the legal requirements
The notice has to comply with various legal formalities. For instance, the writ contains the consequences of non-appearance and the legal amount of corresponding court fee due. Depending on the type of the legal procedure, the defendant should appear represented by a Dutch lawyer (a member of the Dutch Bar Association, authorized to practise law). In addition, the plaintiff must explain the legal basis of his claim (for example, that the plaintiff has a contract with the defendant and that the defendant in that respect owes amounts to the plaintiff, which have not been paid). The final part of the summons contains the claim, a precise description of what the plaintiff wants the court to order the defendant to do (e.g.: “plaintiff claims that the defendant is sentenced to pay € 10.000, – increased with statutory interest as from (… )”). This is called the petitum (Latin for that what is claimed). The judge is not allowed to legally (autonomously) supplement or modify this claim.
Non- appearance (default): Court grants the claim
The time between the date of delivery and the hearing for which is summoned should be at least one week, and in case of EU-residents at least 4 weeks. In summary proceedings and in special cases the court may, however, reduce that period. Elsewhere on our website, we have written on international jurisdiction in Civil Cases. If the defendant does not appear at the hearing for which he was summoned in the prescribed manner (i.e. by lawyer if required, or either in person or by an attorney who makes himself known as such to the court if no representation by a lawyer is required) and when controlling the summons the court has concluded that all legal requirements are met, the court grants default of non-appearance to the defendant. Then the court refers the case to a session that is usually two or four weeks thereafter in order to render its non-appearance verdict.
Judge sustains the claim against non- appearing defendant
In the non-appearance verdict the court honours the claim in principle entirely, unless “this seems unlawful or unfounded to the court “. In practice this is a marginal test. The claim against a non-appearing defendant is usually honoured anyway, at least the principal amount. In non-appearance cases the court will in principle on the basis of fixed tables (in accordance with the “Incassowet”) assess whether and to which extent collection cost can be assigned. The default judgment is generally declared “enforceable”. This means that it can be enforced by the plaintiff (which means it can seize all assets of the defendant), even if then this judgment is officially appealed.
Application to set aside a default judgment: short term!
If someone missed a summons (e.g. because he was not present at his official address or – what happens frequently – because he carelessly deals with his mail), it may happen that while not-appearing he is sentenced to a claim he disputes. If he wants to dispute that judgement, he should start proceedings in order to set aside the judgment by default. For such a protest, tight deadlines are maintained. A protest has to be made by means of a summons to the initial plaintiff and should contain the defense (plea) of the defendant. As a rule of thumb, a resistance summons should be initiated maximum four weeks after the date on which the defendant was informed about the sentence or the date on which the sentence was delivered to the defendant. The exact moment when this term starts cannot always be assessed univocally. Therefore It is always advisable to consult a lawyer as soon as you receive a non-appearance verdict against you. If the appeal is made too late, the appeal will not be sustained, meaning that the verdict will be irrevocable.
Summary proceedings: no written procedure
Summary proceedings entail, in general, one single session, prior to which parties may submit written evidence. The defense cannot (only) be argued writing: the parties have to appear at the session as indicated in the summons in order to be heard by the judge. After that session the judge (preliminary relief judge judge) shall determine the date of the judgment. In summary proceedings, the plaintiff has to be assisted by a lawyer; however, the defendant is also allowed to appear in person. In summary proceedings, the judge is only allowed to make statutory provisions in the verdict and can therefore not bring a final verdict. For example, in a summary proceeding a lease contract cannot be annulled or dissolved, but a tenant can be sentenced to payment of arrear of rent or evacuation.
Proceeding on the merits (substantive proceedings): first the routing in writing, then the session
Substantive proceedings or proceedings on the merits are, as a basic rule, first conducted in writing, although the defendant may also appear in person in matters amounting to maximum € 25.000,– as well as rent and labour matters – of that plea the Registrar will write the minutes of the session. If the defendant appears in the proceedings, he will be granted a delay of generally six weeks (with cantonal courts four weeks) to make an appeal: the statement of reply.
With the statement of reply, also a counter claim can be made. The statement of reply must have been delivered strictly in time. If the statement of reply has not been delivered or delivered too late, then the court submits a so-called “act niet dienen”, and the defendant loses the right to resubmit the plea. As a rule, the court will then proceed to granting the claim. A sentence made thereafter- depending on the amount of the claim – is in principle open to appeal to a higher court (which should always be entered by a lawyer).
If you are summoned in The Netherlands: consult a Dutch lawyer
If you have received in general a summons it will describe the matters you will have to do. Yet the language of the summons is often rather archaic and hard to understand for a legal layman. If you receive a summons, it is therefore always advisable to immediately consult a lawyer in order to avoid that you lose rights.