No legal proceedings are ever the same. Interlocutory proceedings, for example, are different than substantive proceedings, while substantive proceedings dealt with by the subdistrict court differ to those dealt with by the civil-law sector of a court. In this blog, Dutch procedural lawyer Thomas van Vugt explains how substantive proceedings are conducted before the civil-law sector of a Dutch court.
In the Netherlands, if you require a declaratory decision (a binding opinion regarding a legal relationship between the parties issued by a judge, for example in property disputes) or a claim in excess of € 25,000.-, you can institute substantive proceedings with the civil-law sector of the court. Some cases, such as disputes involving employment contracts or lease and
A natural person who does act in the course of a profession or business.
» Meer over consumer consumer agreements, have to be settled by the subdistrict court, regardless of whether the claim exceeds € 25,000.
In order to institute legal proceedings, the claimant has to be represented by a lawyer. This is not the case in subdistrict court cases. The proceedings are initiated by issuance of a summons, a writ executed in the presence of a civil-law notary, in which the claimant explains the nature of the dispute between the parties and what he wants the court to do. The counterparty can, for example, be ordered to do something, to refrain from doing something or to tolerate something.
The summons specifies a cause list date. This is the date on which a written hearing will be held and for which the claimant is required to submit the summons to the court, and on which the respondent has to ‘report’ to the court (put forward arguments in writing). The parties are therefore not required to appear at the hearing in person.
If the defendant does not appear in time or does not appoint a lawyer, the court will decide to grant leave to proceed against the defendant. In a default judgment, the claim of the claimant is awarded, unless that claim appears unfounded or unlawful. You can always respond to a default judgment, in which case you have to lodge an appeal within four weeks as from the date on which notice of the judgment was served.
Both the claimant and the defendant are required to pay a court fee in order to conduct proceedings. The size of the fee depends on the interest at stake in the case and the capacity of the party to the proceedings (legal person, natural person or party of limited means). The court fees must be paid within a period of 4 weeks after the cause list hearing date. If the payment is not made in time, the claimant runs the risk of dismissal of the case (discontinuation of the proceedings). The defendant can be declared to be in default through nonappearance if payment is not made in time.
The court subsequently decides within which period the defendant is required to submit a statement of defence (defence against the summons). A defendant who has appeared in court is usually granted a period of 6 weeks. In the statement of defence, the defendant can also lodge a counterclaim in addition to a defence or other response. The claimant’s claim is also referred to as the claimant’s statement of claim. The defendant’s counterclaim leads to the simultaneous conduct of two proceedings: proceedings on the claimant’s claim and counterclaim proceedings.
Based on interim judgments, the court decides how to proceed with the case. There are various options, and the course of the proceedings depends on the complexity of the case. How long the proceedings last therefore depends on the circumstances, which can be many. The court can also apply an interim judgment for a part of the case and issue orders to the parties to submit specific proof.
The court will often summon the parties to appear at a hearing in person, in which the lawyers are given the opportunity to make pleas and in which the court can make requests for further information regarding the case at hand. The parties can also investigate whether or not a settlement can be reached. If not, then the court can decide to deliver a judgment in writing. The court may also deem it necessary to order another oral hearing, for example because new facts have emerged during the personal appearances or because the parties were not given sufficient opportunity to respond to new documents.
The court can for the same reason rule that another opportunity be granted for the exchange of documents. If a new written round is held, both the claimant and the defendant are entitled to submit a statement in the form of a written document in which their viewpoint is explained; a statement of reply by the claimant, and a rejoinder by the defendant. Both parties are given a period of 6 weeks to do so. If an interim substantive ruling has already been given, that period is reduced to 4 weeks. The parties may also submit deeds, or written documents containing summarised statements. The counterparty must always be allowed to respond to new items of evidence.
In addition to submitting written exhibits, the parties can also comply with an order to provide proof by having witnesses examined or by having experts conduct appraisals. To this end the court can order additional oral hearings to be held. Witnesses that were summoned to appear in court in accordance with the statutory requirements are obliged to testify. The claimant and the defendant can also appear as witnesses at their own request or at the request of the counterparty.
Experts can, both at the request of the parties and at the request of the court (“ex officio”), be asked to give their opinion. This can be done by means of examination during an oral hearing or by notice provided by the expert in question.
The court determines the period within which judgment will be pronounced after the last procedural step has been taken. The court usually aims to set this term at 6 weeks, but the judgment might be postponed (deferred judgment). Judgments are often deferred.
After judgment has been pronounced, the parties are given three months within which to lodge an appeal. An appeal cannot be lodged in the Netherlands if the interest involved in the case amounts to less than €1,750.-, in which case the judgment of the court of first instance is final.