As mentioned in her last article, the interim relief injunction procedure is an effective and fast way of retrieving an enforceable judgment in The Netherlands in cases where there is no (known) defense and/or where the claim has been acknowledged. In other situations, it can be wiser to initiate a “normal” preliminary procedure (the provisional procedure) or a substantive procedure. In this article, Sonia Beedie will set out in short what the provisional procedure looks like. In the following article, the substantive procedure will be looked into.
Provisional procedure
In this type of procedure the court will only give a provisional judgment. It can be appealed in a fast appeal procedure, or one of the parties may start a substantive procedure about the same dispute. The court in the substantive procedure is not bound by the decision of the provisional judge, as it was only a provisional decision and not a final one.
Requirements
For the claim to be admissible in the provisional procedure, your client must have an urgent and pressing interest in retrieving an enforceable title at such short term. In the case of debt collection in this procedure, more specifically the claim must be highly plausible and there may not be a recovery risk. This means that if the defendant decides to appeal the decision or if a substantive procedure about the same claim is initiated, there must not be a risk that the original plaintiff cannot repay the claim if defendant is consequently successful.
Furthermore, the claim cannot entail the retrieval of a declaratory verdict. This means your client may only ask for (for example) payment of invoices or an advance payment of damages, but cannot ask the court to determine a legal status of a situation such as a declaration of liability of defendant.
Lastly, the claim may not be factually or legally too complex for handling in a provisional procedure. This will only be the case if the facts cannot be brought to clarity sufficiently, or the court cannot properly oversee the consequences of its verdict.
The court will award the claim if it is highly probable a court in a substantive procedure would too. This means the normal rules of evidence do not apply in such cases. There is for example usually no room for witness examination and the court will often rule based only on the available documented evidence. If the evidence is mainly witness-based, this is not the best procedure to follow.
Procedure
The draft writ of summons with which the procedure is initiated must be sent to the court including absent dates of (if possible) both parties. Usually within 24 hours, the court will have set a date for the hearing which will be at least seven days later but usually no later than 4 weeks after (depending on the degree of urgency and the availability of the court and parties to the procedure). If the claim is exceptionally urgent a date may be requested sooner than seven days later, but this is not very customary in debt collection cases.
As soon as the court hearing date has been planned, the writ of summons can be served to the defendant by a bailiff (with at least seven days between the date of serving and the court hearing). The defendant may submit a written defense and/or documented evidence up to 24 hours before the hearing, but is not obliged to do so. The defendant must appear at the hearing himself or represented by a lawyer, he cannot therefore suffice with just a written defense. At the hearing, parties will be given an opportunity to plead their case. A verdict can follow verbally, but more often will be given in writing one to two weeks after the court hearing. Therefore, with this procedure it will usually take only about one month to retrieve an enforceable verdict.
The legal fees of this procedure are relatively low as there are not as much procedural actions to take as in a substantive procedure. The court fees will depend on the amount of the claim. The higher the claim is, the higher the court fees will be.
Conclusion
This type of procedure is (just as the interim relief procedure) quite straight-forward, fast and not as costly as a substantive procedure. For those reasons it is often preferred above a substantive procedure, which can easily last a year or more. If the requirements as set out above are met, this therefore is a fast way for your client to collect a debt. Your client must however keep in mind that it is only a provisional judgment, which may be overturned in appeal or in a substantive case.
Sonia Beedie
sonia.beedie@pellicaan.nl
