In the Netherlands, summary proceedings (kort geding) are frequently conducted in civil law cases. In practice, many cases have seen a breakthrough because of pragmatic judgments, giving direction to the parties in order to have their matter resolved permanently. Summary proceedings include the terms interlocutory proceedings, preliminary relief proceedings, preliminary injunction proceedings, or protective measures proceedings.
In all urgent civil matters a party’s lawyer can ask the preliminary relief judge (voorzieningenrechter) to determine a date on which the summary proceedings will be heard in court. This request is made on the basis of a draft writ of summons. The claimant must call the defendant in the summary proceedings to appear in court by way of a writ of summons. Depending on the urgency of the matter, the date for the hearing will usually be scheduled on a date from one to six weeks after the date of the request. In very urgent matters, this period can even be shorter. The defendant has no obligation to file a written statement of defence; sometimes, however, this is done anyway in order to have the debate on the oral hearing concentrated as much as possible. Both the claimant and the defendant can submit written evidence before the hearing (as a basic rule: up to 24 hours before the hearing). A Dutch attorney must represent the claimant in summary proceedings; the defendant may appear in person, or be represented by a Dutch attorney (but not by any other representative). The hearing itself is rather free and informal. Usually, the claimant and defendant are given the opportunity to present their cases by way of their respective attorney’s oral pleadings . Subsequently, the judge may at any time ask questions to any of the parties. After the hearing, the judge will give judgment within 7 to 14 days, but may even give a provisional judgment at the hearing itself. The written judgment will then follow within several days.
Summary proceedings are, by their nature, not conclusive. They cannot definitively settle disputes: all decisions in summary proceedings are strictly provisional, and in principle revocable in proceedings on the merits. A judgment in summary proceedings does not affect the position or rights of the any of the parties to proceedings on the merits concerning the same matter. Notwithstanding this theoretical background, in practice the consequences of preliminary relief measures granted in summary proceedings can have quite a final character. Apart from some exceptions (e.g., in IP cases), the parties to summary proceedings are not obligated to initiate proceedings on the merits after the judgment is issued in summary proceedings. Judges that rule in summary proceedings usually are considered to be experts in their disciplines.
A claim in summary proceedings must serve an urgent interest: the matter must require an immediate remedy. If the court, however, deems the case to be too complex to be ruled on in summary proceedings, it may deny the claim solely on this ground. Whether this is the case depends on (among other things) the presentation of the case and on the specific matter. It is, for instance, common practice that complex IP matters such as patent claims, infringement cases, or other intellectual property cases are dealt with regardless of the complexity of the case. If, however, the court is of the opinion the there is too much uncertainty (e.g., regarding crucial evidence), the court may also deny the claim.
As long as the judgment is not final, there are a number of remedies available. Usually, claims in summary proceedings are monetary claims (payment of a debt, or advance payment of damages), or injunctions. Injunctions can include an eviction order, or an order to comply with the judgment, such as publishing a correction or rectification, or an order to desist from making certain statements or performing certain acts). Such 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 judgment is given. In appeal proceedings, both parties must appear represented by a Dutch attorney who must file written statements. In urgent cases, appeal proceedings can be expedited to be heard approximately 1 to 2 weeks after the appeal was lodged. Appeal judgments in summary proceedings are subject to Supreme Court appeal within eight weeks after an appeal judgment is issued.
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