Responding to the claim

Early steps available

What steps are open to a defendant in the early part of a case?

A defendant has a variety of options to respond to the writ of summons, such as a motion challenging the jurisdiction of the court and a motion to join an indispensable third party. These motions must be filed before presenting the defence on the merits. A defendant can also present his or her counterclaim. The counterclaim must be first initiated in the statement of defence and then also in the statement of claim in the rejoinder proceedings.

Defence structure

How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?

Generally, after the writ of summons of the claimant the defendant has to respond to the writ of summons within six weeks in his or her statement of defence. An extension of this time frame is possible if parties unanimously request this or if one of the parties is able to demonstrate that there are compelling reasons to grant an extension.

There is no fixed structure for a defence. A typical defence would include the following chapters:

  • introduction;
  • facts;
  • formal defences (eg, challenging jurisdiction);
  • substantive defences;
  • counterclaim;
  • offer of further evidence; and
  • conclusion.

The defendant has to substantiate its defence with documents (exhibits) and (optional) tender evidence by witnesses.

Changing defence

Under what circumstances may a defendant change a defence at a later stage in the proceedings?

A defendant is allowed to supplement and change its defence in the course of the proceedings (although this might affect his or her overall credibility). However, after the statement of defence, there may not be another opportunity for the defendant to adjust his or her defence. In the appeal, the defendant is allowed to supplement and correct anything he or she did bring forward or failed to bring forward in the proceedings in first instance. The basic principle is that parties must present new arguments ultimately at the first opportunity in the appeal.

Sharing liability

How can a defendant establish the passing on or sharing of liability?

A defendant is allowed to initiate ancillary proceedings to request an impleader of a third party. Should a defendant wish to request an impleader, he or she must file a motion to that effect before presenting any of his or her substantive arguments and defences. The motion must establish that the claim against the third party is dependent on the claim in the main proceedings, and that the impleaded party has a duty to hold harmless and indemnify the original defendant in the event that the latter is unsuccessful in the proceedings against the claimant.

Avoiding trial

How can a defendant avoid trial?

The most common way to avoid trial in the Netherlands is for a defendant to agree on an amicable settlement. If no amicable settlement can be reached, parties have various alternatives to litigation such as mediation and the Dutch concept of binding advice.

In the Netherlands, there is no legal framework for mediation. The EU has, however, adopted Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters in cross-border disputes, which is implemented in Dutch law.

Binding advice is based on a contract between parties. By a contract, parties agree in advance to be bound by the decision given by one or more third parties who have been appointed by the parties as binding advisers (this could also be an expert determination). Parties who have agreed to refer a matter to binding advice cannot submit a claim before state courts or in arbitral proceedings. As the binding advice is part of the parties’ agreement, the party that fails to comply with the advice is in breach of contract. This means that the only available remedy for the other party is to claim specific performance of the agreement or damages.

Finally, if proceedings are initiated by the plaintiff, the defendant can raise certain formal defences. The most commonly raised formal defence is challenging the jurisdiction of the court. Further, if a defendant is able to present a substantial and credible counterclaim, this often encourages the plaintiff to engage in (or reopen) settlement negotiations.

Case of no defence

What happens in the case of a no-show or if no defence is offered?

If the defendant does not appear when summoned appropriately, the court may render a default judgment. The court will adjourn the proceedings for a period of four weeks in order to verify whether all legal formalities have been fulfilled with respect to the summons and the service of process by the bailiff.

The court will assign the claim to the defendant against whom default has been rendered unless the court deems the claim unlawful or unfounded. In practice, the review by the court is very marginal and claims entered in default are usually allowed. The default judgment has immediate effect, meaning that it can be executed right away. Dutch law provides for an action to have a default judgment set aside. The defendant has to issue a notice of objection to the original plaintiff. The term for issuing this notice is four weeks if the defendant is domiciled in the Netherlands and eight weeks if the defendant is domiciled abroad after the default judgment has been served. The notice must contain all formal and substantive defences. As a result of the objection the case will be reopened.

If the defendant appears in court but fails to offer any defence, which would rarely be the case, the court will admit the claim assuming that the (uncontested) facts raised by the plaintiff support the claim.

Claiming security

Can a defendant claim security for costs? If so, what form of security can be provided?

Claimants who are not residents of the Netherlands who bring a claim before a Dutch court can, at the request of the defendant or defendants, be obliged to provide security for trial costs, or damages that they might have to pay in the event that the court awards those costs to the defendant or defendants. However, security for costs is only available if the claimant resides in a jurisdiction that does not have an enforcement treaty with the Netherlands. Given the large number of countries that the Netherlands has such a treaty with (most notably, the Hague Convention relating to Civil Procedure of 1954 and the Friendship, Commerce, and Navigation treaty with the US), it will seldom be possible for the defendant to successfully claim security for costs.