Default, default judgment and opposition
A party receiving a summons is being summoned to appear before the relevant court on a set date – whether or not accompanied by a lawyer, depending on the procedural rules. If, on the day the defendant is summoned, he does not appear, the court assesses whether the formal requirements for summoning and appearance have been met.
When does the Dutch court enter the party’s default?
If the Dutch court finds the defendant has summoned appropriately but did not appear (or not appear correctly, for example, without counsel) in the proceedings, the court must enter the default. Also, if the defendant does not pay the court fees on time, even though this was notified by way of the summons, the court will enter the default. The claim is assigned to the defendant against whom default has been entered unless the court deems the claim unlawful or unfounded.
What does a Dutch default judgment entail?
In practice, the court only very marginally reviews whether it deems the claim “unlawful or unfounded.” In practice, claims entered in default are (usually) fully upheld. A defendant may never rely on the court to thoroughly assess the legality and validity of the claim. The (default) judgment is, if claimed, in principle, also provisionally enforceable. That means submitting a defence (or appeal, which is sometimes necessary) does not suspend the execution of the judgment. No appeal is required against a default judgment (in most cases), but rather an opposition. Proper opposition includes that the case must still be treated in contradiction with the same authority issuing the default judgment. This in contrast with an appeal, which is treated by another, higher, court.
What are opposition proceedings?
Opposition proceedings are conducted in the court issuing the default judgment. Opposition proceedings commence by way of a writ of summons. This way, the defendant subjected to the default judgment summons the original claimant. The oppositional summons is considered a statement of defence (i.e. defence against the claim) and may include a possible rebuttal (counterclaim). In fact, the opposition reopens the proceedings, with further substantive treatment.
Dutch Lawyer serves oppositional summons
In cases where the defendant cannot litigate in person, the opposition must be filed by a lawyer who announces himself as counsel for the plaintiff in opposition (or opponent) by way of issuing an oppositional summons.
Oppositional term: short and fatal
The deadlines for lodging opposition proceedings is short. In principle, the deadline for issuing an oppositional summons is four weeks after service of the judgment in person, or after the date on which the defaulted party carried out an act proving that he is aware of the contents of the judgment. These short deadlines mean that the lawyer of the defendant convicted in default not only must prepare the formal oppositional summons within four weeks but also, in the oppositional summons, must establish formal oppositional summons and must formulate a complete defence against the applied claim. It is, therefore, advisable if you are (accidentally) faced with a default judgment, to consult a lawyer as soon as possible.
Three different starting times for the oppositional term
The short term is extremely strict: if the oppositional summons is delivered a day late, the plaintiff in opposition is rendered inadmissible, and the default judgment becomes final. The oppositional term may begin at three different points in time. Moreover, these terms may vary depending on the place of residence of the defendant:
1. As stated above, the oppositional term starts counting from the point in time the judgment was served in person to the convicted party. Service on a legal person is effected by service on the director of that legal person in person.
2. The terms start from the moment the convicted party has carried out an act of awareness indicating he is familiar with the contents of the judgment. This must be an outward act, showing that the defendant is aware of the contents of the judgment.
3. Finally – and this is often overlooked – the oppositional term begins to count on the day following the completion of the implementation (execution) of the judgment. This is not necessarily a full execution. If the creditor, for example, identified small amounts of cash at the bank, which have been seized, and the execution of those amounts are completed because the bank paid the balance to the bailiff, the execution is completed. Accordingly, the oppositional term commences at that point in time.
Oppositional term for defendant residing outside the Netherlands
The default term is eight weeks if, at the time of the service or act of awareness, the defendant was not residing in the Netherlands, but his residence or actual residence outside the Netherlands is known. If the domicile of the defendant is unknown or outside the Netherlands, the oppositional term only starts as of the date on which the judgment is executed.
Validity of default and opposition for Dutch summons proceedings
The default judgment and the legal remedy of opposition apply only to summons proceedings. For application proceedings – which can also result in serious payment convictions, including maintenance obligations, etc. – the remedy of opposition is unknown. However, the law does not provide that in application proceedings, the court may grant the application unless it is deemed unlawful or unfounded, but in practice, this often occurs. For application proceedings, the only available legal remedy is an appeal (followed by cassation if necessary).