Start of the Proceedings: the Writ of Summons

Start of the Proceedings on the Merits

In civil law, cases can be initiated with a writ of summons or a petition. Most civil cases, however, are initiated with a writ of summons. That is why these proceedings are called summons proceedings.

Civil summons proceedings before the ordinary court commence with the service by the bailiff of a writ of summons, drawn up by the lawyer of the claimant. The bailiff issues the writ to the defendant (the service) to ensure that the defendant is aware of the fact that proceedings have been instituted. The writ of summons contains what is called a court calendar date: a date before which the defendant has to report to the court, accompanied by a lawyer. There must be at least eight days between the service of the writ of summons and the first court calendar date, to ensure that the defendant will have time to find a lawyer. The proceedings are pending from the time of service. See the page with more detailed information on the proceedings on the merits.

Mandatory Legal Representation

In the Netherlands, it is possible to institute civil proceedings without a lawyer. Engaging a lawyer is also called legal representation. Having a lawyer is not necessary for civil proceedings that are conducted before the Subdistrict court. However, for all other civil proceedings, such as those before the Court in Summary Proceedings or the District Court, engaging a lawyer is mandatory. A lawyer is always mandatory in appeal cases, regardless of the type of the case. An overview of cases for which having a lawyer is or is not required can be found on the website of the Dutch judicial system (de Rechtspraak).

In addition to the question of whether you are obliged to engage a lawyer, it is also important to know if you have legal expenses insurance. Such insurance may cover the costs of legal assistance. Many people do not know, however, that the law gives entitlement to a free choice of counsel if you have legal expenses insurance. See the page with more detailed information about the entitlement to a free choice of counsel at a legal expenses insurer.

If you are insured for legal expenses, you therefore have the right to choose a lawyer yourself. This means that the insurer will have to respect your choice, regardless of whether engaging a lawyer is mandatory in your case, or whether a file has already been openend with the insurer itself. Even if the case is still at an early stage, you can choose to engage an external lawyer, who can claim the costs directly through the legal expenses insurance. Read more about legal expenses insurance on this page.

Second Opinion

A second opinion may be useful if you have doubts about the advice of your lawyer of if you want to be certain about the legal course of action for your case. Your file will then be reassessed by an independent lawyer. This may help you gain a better understanding of the feasibility of proceedings or an appeal. More information about second opinions can be found on the page concerned.

Court Calendar Date

A court calendar date is stated in the writ of summons. On this day, there will be a written session in which the court checks if the summons has been issued properly and the defendant has responded to the summons. The parties do not need to be physically present on this date, but must be represented by counsel. The counsel does not have to report physicially to the court either, but has to inform the court that they represent the defendant.

Contents of the Summons

The law prescribes that a writ of summons has to meet certain requirements, such as a description of the claim (this part is called the claim for relief: what the claimant wants the court to do), the legal grounds on which the claim is based, and a detailed description of the facts and circumstances that should lead to allowing the claim, with – where necessary – proof of the facts furnished. In civil proceedings, a wide variety of claims may be brought, such as, for example, performance of an obligation arising from a commitment, a prohibition on doing something or payment of a sum of money.

In addition to the principal claim, you can also demand that an incremental penalty is imposed to ensure compliance with an order to do, omit to do or provide something. This means that the other party has to pay a sum of money for each time they do not comply with the judgment. An incremental penalty can be used, for example, in the case of collection proceedings if the defendant does not pay, or in the case of proceedings pursuant to which a defendant has to surrender an object, but omits to do so. Read more about the incremental penalty and its statute of limitations on this page.

In civil proceedings, it is also possible to add a third party through a writ of summons. This means that you involve a third party in a case that is already before the court, with the aim of recovering the damage directly from this third party if you are convicted yourself. Adding a third party can be useful if you feel that this party is ultimately liable for the claim instituted against you. See the page about indemnification proceedings for more information.

Court Fee

Both the claimant and the defendant have to pay a court fee to the court to be permitted to litigate. The amount of the fee to be paid depends on the size of the case and the capacity of the party to the proceedings (legal entity, natural person or person of limited means) and can be found on the website of the judicial system. If payment is not made in time, the claimant risks dismissal of the proceedings (termination of the proceedings) and the defendant runs the risk of a default judgment being given against them. In practice, the court fee is often paid through the intervention of the counsel.