Litigate: is a lawyer compulsory?
In many cases, you are required to engage a lawyer to litigate. However, a lawyer is not mandatory in the subdistrict court, but a lawyer is obligatory in the civil court. A lawyer is usually not required in administrative law.
However, it is also advisable to engage a lawyer for cases in which a lawyer is not obliged. Litigation is a separate subject, bound by the Dutch Civil Procedure Act and procedural regulations, and this requires specific knowledge and skills. Apart from that specific knowledge and expertise of litigation, experience with litigation is often essential. Fennek lawyers jointly have more than 30 years of experience in litigation, so they know well what is and what is not feasible.
Litigation: the summons and the hearing
If you are summoned, the writ of summons will tell you which judge to appear before. The summons also contains the date for the first cause-list representation. Procedural decisions are taken at this hearing. It is not mandatory for you to be there, but you must report your position to the court. Depending on the procedure, a lawyer may or may not be required. If you appear in a procedure without a lawyer where a lawyer is mandatory, you will be declared inadmissible. It is therefore very important to be assisted by a specialized lawyer who can advise you on the legal proceedings.
Filing a defence in a legal procedure
If you are summoned, the writ of summons will describe what is claimed, based on facts and circumstances and legal grounds. The summons is often the most important procedural document when it comes to litigation. The claims must be clearly defined, substantiated with evidence and the judge must be convinced of what is laid down in the summons. If you invoke a defence in a procedure, it is of course relevant to state why the claims should not be allowed. In litigation it is very important what you do and what you do not put forward, what evidence you have and what the best strategy is. Practice shows that in order to successfully litigate having an experienced lawyer by your side will increase your chances.
Default: what to do in a default judgement?
If you fail to engage a lawyer or do not appear (report yourself) to the court (in case no lawyer is required), then your counterparty’s claims are likely to be assigned. This is called a default judgment: the claims have been awarded in absentia. If a defence is put forward, it is referred to as a judgment that is contradictory.
While it may be that your counterparty is largely right, defending is usually in your best interest. For example, your counterparty can claim high costs that exceed the normal collection rates. In addition, where the court gives a default judgment, your counterparty can turn to the bailiff with that judgment and take an enforcement order. You can often object to a default judgment, but you will be lagging behind in the procedure.
Receiving a summons: what should I do?
If you have received a summons, it is always advisable to contact a lawyer quickly. The procedure starts with a summons (or a petition), which is served by a bailiff.
The bailiff with the summons
The bailiff will therefore visit your address or the address of your company. If you are at home / the company is open, the bailiff will indicate that the summons has been served in person. Otherwise, the bailiff will leave the summons in a sealed envelope. It is important to know that this is a legally valid method of service.
Content of the summons
The summons must comply with legal requirements. For example, it must be clear who will be summoned, where he / she must appear, that court fees are due (or not) and what exactly the claims are. The claimant must explain what the claim is based on. It is not only about what the legal grounds are, but whether the facts fit those legal grounds.
At the end of the summons is always stated what is claimed. This is also referred to as the “petitum.” The petitum means “the advanced”. The preparation of the petitum is very important, because the judge is bound by it. A judge does have the power to supplement legal grounds on the basis of the statement, but a judge does not have the power to change what is claimed. A judge may never allocate more than is advanced, but may allocate less.
Written defence against a summons: conclusion of answer
After the summons has been brought before the court, you / your lawyer will always be given a period to respond in writing. In some cases it is possible to obtain a second extension. The written answer is called the “conclusion of answer”. It is also possible that you set up a so-called “incident”. An incident is a (mini) procedure within a procedure. An incident concerns a subject that must be decided before the matter is dealt with substantively.
Rights and duties: summons
Fortunately, receiving a summons is not very common. Although the law has determined that it must be clear to everyone what the writ of summons means to you, the experience is that this is not always clear. The terms are usually short (the term of summons is for example only 7 days), so some haste is necessary. It is recommended to immediately engage a lawyer. Fennek’s lawyers have extensive experience with both summoning parties and defending both simple cases and more complex procedures. Do not hesitate to contact us.