Civil law proceedings
The below gives you an idea of how civil proceedings work in the Netherlands. Despite the best efforts of the courts, there are, however, still many procedural variants possible in civil cases, so the below is just a general overview of a straigtforward case.
Writ of summons
Civil law proceedings always start with a writ of summons, which is served to the counter-party by a bailiff. A term of eight days must be observed between the service of the writ of summons and the first court date if the defendant resides in The Netherlands. If not, then a longer term of up to three months must be observed.
A common misconception on receiving a writ of summons is that you must actually appear at a hearing on the first court date. However, the date stated in the writ is always an administrative docket date and the court only registers the receipt of the case and adjourns the case immediately on that date. There is no actual hearing. It is customary to have representation for the defendant introduce themselves on this date and request an adjournment.
Legal representation
In cantonal court cases defendants may either elect counsel (usually a lawyer or other legal professional) or defend themselves. Though the courts cannot refuse a defendant the right to defend themselves orally in cantonal cases, it is by far the preferred method that a defence is submitted in writing.
In all other civil cases , representation by a lawyer is compulsary to be able to address the court.
Defence
If no defence is lodged, the case is adjourned for a default judgement within four weeks. Within this period it is still possible to clear the default by electing counsel or lodging a defence.
Hearing
When a defence is lodged, the courts will schedule a hearing to both gather further information for deciding the case and to test whether parties can come to a settlement. Some judges will even give interim opinions on how the case will be decided if a settlement is not arrived at. It is common to send parties to the corridor to negotiate a settlement during the hearing. Other judges will, however, remain completely silent and leave parties guessing at the outcome. Judgement is never rendered at the hearing itself, but at least six weeks later.
In some cases it is obvious that a settlement will not be arrived at and the judge will use the hearing to discuss points of law and how the case will continue. What witnesses do parties wish to hear? Is an expert report necessary to assess damages? These hearings are generally more technical and are used to streamline the further proceedings.
After the hearing
If the judge feels that the court has been informed enough, then a judgement will be rendered after the hearing and no further submissions will be allowed. In complex cases, however, a second round of written submissions may be allowed. In such cases, parties can either request judgement after the further written submissions or request formal pleadings at another hearing.
Appeal
All judgements by the lower courts may be appealed to the four Civil appeal courts. If a cantonal court judgement is appealed, then the appellant may no longer represent themselves, but must appoint legal counsel, i.e. a lawyer. In principal, the appeal process only allows for one round of written submissions and one hearing, but if the appeal court comes to a different decision to the lower court, witnesses may still need to be heard etc. The appeal process can therefore entail all of the procedural complications of the first proceedings.
The appeal process assesses the merits and facts of the original case and can entail a full re-examination of the case, though this depends on what points of the first judgement have been appealed. If, for example, only the amount of damages awarded in a civil case have been appealed, the appeal court may not examine whether the other party is liable or not. That will be an irrefutable fact in the appeal case. The grounds for appeal submitted are therefore of great importance to what the appeal court may rule on.
Cassation/ Supreme court
After appeal, points of law may be appealed to the Dutch Supreme Court ('Hoge Raad'). So, if the complaint is that the Court of Appeal has not applied the law correctly or that the grounds of the judgement are not properly understandable, this may be appealed to the Supreme Court, but if the complaint is that the Court of Appeal did not evaluate the facts of the case properly, there are no grounds for further appeal.
Many applications to the Supreme Court fail each year either because a factual finding by the appeal court is being appealed or that the Supreme Court finds that the Court of Appeal has applied the law correctly. Because of the specialist nature of Supreme Court proceedings only certain experienced members of the Dutch bar are permitted to bring proceedings before the Supreme Court.
If you have any questions regarding civil law proceedings in the Netherlands, please feel free to contact Maria Bowmer at our expatriate desk.