Litigation in The Netherlands
In The Netherlands, summary proceedings (in Dutch: kort geding) are frequently conducted in civil law cases. In law practice, many cases have seen a breakthrough by ways of pragmatically judgments, giving direction to the parties in order to have their matter solved permanently. “Kort geding” is also translated in English as interlocutory proceedings, preliminary relief proceedings, or preliminary injunction proceedings.
In all urgent civil matters a party’s lawyer can ask the President of the court (in Dutch also called: voorzieningenrechter, the “preliminary relief judge” to determine a date on which the summary proceedings (the oral court hearing) shall be held. This request is made on the basis of the draft writ of summons. The plaintiff must call the defendant in the summary proceedings to appear in court by ways of a writ of summons. Depending on (among other things) the urgency of the matter, the date for the hearing usually will be scheduled on a date between one to six weeks after the date was requested. In very urgent matters, this period can even be shorter. The defendant has no obligation to file a written statement of defense; sometimes, however, this is done anyway, in order to have the debate on the oral hearing concentrated as much as possible. Both the plaintiff and the defendant can submit written evidence before the hearing (as a basic rule: up to 24 hours before the hearing). An attorney must represent the plaintiff in summary proceedings before the President of the Court; the defendant may appear in person, or represented by an attorney (but not by any other representative). The hearing itself is rather free and informal. Usually, plaintiff and defendant are given the opportunity to present their cases by ways of an oral pleading of their attorneys. Subsequently, the judge may play a rather free an inquisitiorial role, and ask many questions to any of the parties. After the hearing, the judge will give judgment within seven to 14 days, but he may even give (provisional) judgment on the hearing itself (the written judgment will then follow within several days).
Injunction / provisional remedy
Summary proceedings are, by their nature, not conclusive. They cannot finally settle dispute: all decisions in summary proceedings are strictly provisional, and revocable in proceedings on the merits (provided that forfeited penalties will remain forfeited, even if the proceedings on the merits result in a diametrical decision). A judgment in summary proceedings does not affect the position or rights of the any of the parties in proceedings on the merits (on the same subject). Notwithstanding this theoretic background, in practice the consequences of preliminary relief measures taken in summary proceedings can have quite a final character. Apart from some exemptions (e.g. in IP-cases), neither of the parties in summary proceedings have any obligation to start proceedings on the merits, after the summary proceedings have come to an end. In other words: a decision in summary proceedings can have a great major authority. Judges that rule in summary proceedings usually are considered to be experts in their disciplines.
Requirement: urgent interest
A claim in summary proceedings must serve an urgent interest: the matter must require immediate remedy. If the judge, however, deems the case to bee too complex to be ruled on in summary proceedings, he may deny the claim on this sole ground. Whether this is the case depends on (among other things) the presentation of the case and (in practice) on matter in question. It is, for instance, common practice that complex IP-matters (such as patent-claims, infringement cases, or other cases of intellectual property) are being dealt with no matter the complexity of the case. If, however, the court is of the opinion the there is too much uncertainty (f.i. regarding crucial evidence).
Preliminary relief measures
As long as the judgment is not declarative, all remedies thinkable can be given. Usually, claims in summary proceedings are monetary claims (payment of a debt, or advance payment of damages), or mandatory injunctions (f.i. an order to evict a house, or to act in line with a specific order, formulated in the judgment, such as publishing a correction or rectification, or to restrain from certain statements or acts). Such mandatory injunctions can be enforced with a penalty.
Judgments in summary proceedings are subject to appeal before the Court of Appeal within four weeks after the day the judgment was given. In the appeal proceedings, both parties must appear by way of an attorney, and must file written statements. In urgent cases, the appeal proceedings can be speeded up to approximately 1 to 2 weeks after the appeal was lodged. Appeal judgments in summary proceedings are subject to appeal in cassation before the Supreme Court within eight weeks.
About Dutch law firm AMS
AMS Attorneys is a law firm in Amsterdam, The Netherlands. The litigation lawyers with AMS have gained a broad experience in advising and litigating for (international) companies and individuals. Dutch law firm AMS is located near Schiphol Airport (10 minutes by car or train). Our attorneys provide legal services for clients throughout the world and have gained a broad experience in advising and litigating. AMS’s lawyers focus on corporate law, real estate law, commercial tenancy law, employment law, insolvency law, construction law, debt collection and contract law. The attorneys are highly involved with their client’s interests and offer a sharp and transparent fee structure.