Summary proceedings in The Netherlands

Kort geding (summary proceedings) as an alternative to Dutch court proceedings

A plaintiff may initiate summary proceedings in the Netherlands before a district court, notwithstanding the jurisdiction of any other court that would be competent in a full procedure.21 The overall competence in injunction procedures allows the court's president to take far-reaching, even irreversible decisions in very different areas of law, such as labour strikes, house evictions, libel, visiting agreements after divorce, etc. - the range of issues has expanded with whatever parties and their attorneys came to think of. The following weird, but historical case demonstrates the essential features of the [kort geding]('. Before dying, a cancer patient had his sperm frozen at a hospital. He made an arrangement with his fiancée that, if she wanted to, she could be inseminated with it. After his death the hospital announced that it did not feel legally bound by the arrangement and would unfreeze the semen. The woman initiated akort geding' asking for an injunction. The president of the district court granted it for the duration of two years reasoning that the legal merits of her case had to be decided in an ordinary proceeding, but pending an eventual suit, an injunction was the only solution to secure the claim, should the decision in the full procedure be favourable. The woman reconsidering after all, changed her mind and did not claim the semen, so it was unfrozen after two years time.

Dutch injunction procedure

Whereas the law in the books suggests a supplementary use, the popularity of the injunction procedure is due to the fact that it is used as a substitute for ordinary proceedings. The `kort geding' and ordinary proceedings can be regarded as two contrasting models of civil justice. Ordinary proceedings in continental courts are thoroughly prepared in a file. Most of the argument takes place in writing. In the courtroom during a regular civil suit the parties are usually absent, their lawyers exchange their motions and documents in front of one (or sometimes three) judge(s). The bench becomes informed on the basis of the file, which gradually grows with the exchange of written arguments. On average it takes a first instance court more than a year to reach a decision, partly because of the caseload, but to a large extent also because of delay tactics on behalf of the defendant.

Injunction and regular Dutch court procedure

Against this background one may understand the popularity of the kort geding', which rarely takes more than six weeks and costs the plaintiff about EUR 5,000 - 10.000. on average. In most summary proceedings there is only one oral hearing of the case. The bench consists of just one senior judge. If a settlement has not been reached, a decision is taken in chambers, usually immediately after the public hearing, by the president in consultation with a law clerk. Decisionmaking inkort geding' is partly more and partly something else than judging the legal merits of the case. As one Dutch court president nicely put it, it is the result of three communicating vessels: the urgency of the claim, the interests of both parties, and the credibility of the facts. For a claim to be granted, a deficiency somewhere has to be met by a surplus elsewhere. In the reasoning of a decision in kort geding' the president is allowed to be short. Neither is (s)he bound by strict rules of evidence: the decision can be based on the credibility of proof. The president can weigh the respective interests of the parties and take a decision merely on grounds of expediency. The clerk afterwards ghost-writes the decision. Dispensing justice inkort geding' consists of conflict management rather than judicial decision-making. One tries to solve, or at least to regulate social problems, rather than to take sides in the legal issue the attorneys put forward. Sometimes the president even says to the plaintiff: Perhaps you're right. But suppose I would grant the claim: how would it help you? My sentence is just a piece of paper.' Thekort geding' is less a special procedure than an authority style that fits very well with Dutch informal pragmatism.

Growth of Dutch summary proceedings

With reference to the considerable growth rates, the injunction procedure seems a good candidate for illustrating a litigation explosion: in 1900 Dutch courts treated a mere 19 proceedings of this kind, whereas in 1994 the kort geding' caseload at district court level was 15,147. On closer examination, however, the growth rate from the mid 1970s till the early 1980s did not appear to be higher than that of ordinary proceedings. Only since 1984 has the yearly growth rate of presidential orders been higher. In particular in large and medium sized district courts lengthy full procedures have been substituted by injunction procedures. Taking into account the length of an ordinary procedure, the Dutch equivalent of the AmericanI'll sue you' can only be the threat of a kort geding'. About one third of all requests for summary proceedings is withdrawn before the hearing of the case. Either the defendant has given in under the threat of the oral hearing or an out-of-court settlement has been reached. Both ways the institution of thekort geding' fulfills the function of regulating conflicts. Of all judicial hearings end in a settlement, leaving about half of all initiated `korte gedingen' for a decision in chambers.

Judge dealing with the injuction in Dutch procedure

The presidents enjoy remarkable freedom in organizing summary proceedings to their own preferences.This results in differences attorneys need to know. In Amsterdam, for example, plaintiffs do not have to prove the urgency of their claim and they can, if needed, get a hearing at short notice. On the other hand, some presidents outside the Randstad' consider the injunction procedure to be inferior to the ordinary procedure. They are not prepared to devote more judicial time to meet the growing demand for summary proceedings. These two contrasting views are reflected in the pretrial stage. It may be difficult to get a hearing at short notice in a district with a restrictive policy on thekort geding'. For example, Islamic groups who tried to prevent the Dutch translation of Salman Rushdie's The Satanic Verses had the bad luck that the publishing house had its seat in the district court of Utrecht, with a president at that time who refused to hear the case before the end of the week, when the book was to be published.

As the competence to decide in kort geding' belongs to the presidency, it is also the president's personal decision to delegate hiskort geding' powers to chair summary proceedings to certain vice presidents. A vice president in charge of summary proceedings is a strong candidate for presidency elsewhere. Because of their own managerial tasks, most presidents leave the run-of-the-mill cases to their vice presidents and keep the most interesting cases for themselves.

Please contact Mark van Weeren if you have any question on Dtuch summary proceedings

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