15 August 2018

Dutch attorney on injunction Proceedings in The Netherlands

Category: Litigation

Injunction proceedings, often referred to as summary proceedings (“kort geding” in Dutch) are becoming a frequent occurrence in civil law cases. However, to be applicable, cases must be of an urgent nature.

Injunctions are often imposed as an order to comply with a court judgement or an order to desist all activities in relation to a certain issue and prevent the issuing of certain statements. To ensure success in the implementation of these injunctions, the court will normally attach strict penalties in failing to abide by them.

Urgency of injunction proceedings in Dutch court

The first hurdle to overcome in bringing forth injunction proceedings is to demonstrate the urgent nature of the case and thus prove the need for an injunction. Essentially, it must be proved that the matter at hand could only be reasonably resolved with an immediate remedy. In assessing a case, the court has the right to deny a request for this type of preliminary relief if there is not a real risk, or if the subject matter of the case is too complex in itself to rule on in summary proceedings.

Injunctions proceedings in the Netherlands

An injunction can be sought from the relevant court upon request of a hearing. The level of urgency in the case will dictate when this hearing will take place, which could range from the same day or up to four weeks. Once this has been settled, the opposing party must then be served a writ of summons. A defendant in the initial injunction proceedings is under no obligation to file a written statement, but may do so, to allow for a smoother and more time effective process.

A Temporary Remedy?

An injunction is usually considered an equitable remedy in most jurisdictions, that is to say, a temporary measure. Whilst this can be the case under Dutch Law, in most cases, there is technically no legal obligation to launch further proceedings once an injunction has been delivered. As such, the injunction could stand as the final decision in a case. This is more common when the party seeking the injunction has been awarded one. However, if this transpires, then there is a possibility for the other party to appeal.

Possibility to Appeal in Dutch court

A granted injunction can be appealed, however, it might no longer carry weight as an urgent case and the normal rules and procedure for an appeal will be applied. The appeal can take up to four weeks to be heard from the date of first judgement. In certain cases, where this sense of urgency persists, there is a possibility to be heard earlier. In these proceedings, both parties need to be represented by a Dutch attorney. A written statement must be submitted by each party. The parties also have the option to submit written evidence to support their case. In practice, the usual rule is that this evidence be submitted 24 hours before the appeal takes place.

The Judgement by Dutch court

The judge in these proceedings possesses substantial freedom in rendering a judgement. He is not subject to the stricter civil procedural rules found in the more usual cases heard before the court. The judge herself may rule that the case is far too complex to be heard in summary proceedings and dismiss the motion for an injunction.

If a judgement is given, it will not be legally binding upon a civil court in any subsequent proceedings. Although, in practice, it is generally used as a starting point or as some form of persuasive authority. It must be stressed that it is a provisional measure and can be revoked in further proceedings if necessary.

The general timeframe for a decision to be made and a ruling given, should be within one-two weeks of the hearing. However, cases that require more urgent attention can at times receive an immediate oral judgement, with the written decision following a week later.