In the case underlying the decision from the Dutch Supreme Court dated 30 October 2015 (ECLI:NL:HR:2015:3195), a building contractor claimed payment of an outstanding invoice for installing window frames. The client refused to pay and argued that the given assignment did not include that work. The Hague Court of Appeal agreed with the client and rejected the building contractor’s claim for payment. The building contractor, however, was not left empty-handed. The Court of Appeal awarded a payment for damages on the basis of unjust enrichment even though this was not claimed by the building contractor. In fact, the building contractor had only claimed payment of an outstanding invoice. Hence, the Dutch Supreme Court was confronted with the following question: did the Court of Appeal go beyond the ambit of the legal dispute by awarding such damages (de grens van de rechtsstrijd)? The consequence of a positive answer to this question would be reversal of the Court of Appeal’s judgment. The Advocate General and the Dutch Supreme Court answered this question differently.
The scope of a legal dispute on appeal is defined by the claim for relief (petitum), the grievance system (grievenstelsel) and the two-statements-rule (twee-conclusie-regel). In civil proceedings, the ‘input’ (facts) and desired ‘output’ (claim) of the proceedings are determined by the parties (cf. s. 24 Dutch Civil Code of Procedure; Wetboek van Burgerlijke Rechtsvordering). The desired output is included in the claim for relief. Whether the given input results in the desired output is decided by the judge. As a consequence of the grievance system, the Court of Appeal is only allowed to reassess grounds against which grievances are submitted. The grounds included in the judgment of the court in first instance which are left uncontested have to be treated as established. The two-statements-rule as laid down in Willemsen/NOM (ECLI:NL:HR:2008:BC4959, par. 4.2) compels the parties to the appeal proceedings to define the scope of their legal dispute in the statement of appeal and the statement of defence respectively. After these court documents have been submitted, the parties, in principle, cannot extend the ambit of their dispute by increasing the claim or bringing forward new grounds for appeal. We know from Wertenbroek q.q./Van den Heuvel (ECLI:NL:HR:2009:BI8771, par. 2.4) that there are only a few exceptions to this rule, unequivocal assent being one of them. With this so-called “in principle strict rule” (“in beginsel strakke regel”) the Dutch Supreme Court has tried to find a balance between quality and finality of appeal proceedings.
The Advocate General is of the opinion that the Court of Appeal was allowed to award damages, which were not claimed, for the following two reasons. Firstly, during the proceedings the client explicitly acknowledged that the work regarding the window frames represented a certain value and that compensation was conceivable for that reason. Secondly, the client did not object against the Court of Appeal’s interlocutory judgment that the question regarding unjust enrichment would become relevant if it was not possible to prove that the given assignment also included the installation of window frames. The Advocate General infers from these facts that the client accepted the legal dispute on unjust enrichment. The consequence thereof would be that the claim for damages had become part of the legal dispute.
The Dutch Supreme Court disagreed with the Advocate General and set the Court of Appeal’s judgment aside. The first reason mentioned above was held to be irrelevant in this respect. The building contractor simply failed to timely extend the scope of its legal dispute by including a claim for damages in the claim for relief. In fact, the building contractor had not increased its claim at all. As to the second reason, the Dutch Supreme Court held that the fact that the client did not object to the Court of Appeal’s interlocutory judgment is insufficient proof of unequivocal assent. Therefore, the Court of Appeal could not come to the conclusion that the client had accepted the legal dispute on unjust enrichment.
This leads to the conclusion that the Dutch Supreme Court, especially compared to the Advocate General, takes a relatively rigid approach on drawing the scope of legal dispute. Considering the case law mentioned above, this does not come as a surprise. Window frames indeed offer a clear view.