Anyone who has been unsuccessful in a procedure before the Court of First Instance in the Netherlands can lodge an appeal. The Court of Appeal will then re-assess the case. The appeal will be successful if the court's decision is incorrect. This the so called correction function of the appeal. The appeal can also be used to correct own mistakes. Litigation is complicated and strategical decisions may have been made that, in retrospect, have not worked out so well. By formulating statements differently, supplementing the facts or supplying alternative legal grounds, the case can be better presented and won. The latter is relatively common in the Netherlands.
Statistics of the Judiciary of the Netherlands show that 35% of commercial cases are subject to an appeal. In cases that have been decided in summary proceedings, the percentage is 17%, while in the commercial cases that are dealt with by the subdistrict court, only in 11% of the cases an appeal is lodged.
According to a study by the WODC (a research institution that is part of the Netherlands Ministry of Justice), the ruling of the Court was confirmed in 41% of the commercial cases and in 35% of the cases the decision of the Court of First instance was wholly or partially set aside. The rest of the cases were settled or withdrawn. This means that a relatively large number of appeals cases are successful for the appellant.
The average processing time for an appeal procedure is 42 weeks. This is comparable to the duration of a commercial case at the court. Anyone who wants to appeal will be litigating for approximately a year. But time load is often low. Formulating the statement of objections and appearing at the hearing takes the most time. Given the continental law system, the actual appearance in court will usually be limited to less than a day. This will be different in cases where witnesses will have to be heard.
The figures show that there is a good chance that the judge on appeal will judge differently than the court. But of course good arguments are needed to make the appeal judge decide otherwise. A successful appeal requires first and foremost a good and honest analysis of the parties' arguments, the process strategy in first instance and the judgment of the Court of First Instance. What went wrong? what could be done better? Based on the analysis, it is decided whether or not to actually appeal. Subsequently, the summons must be issued in time and the objections formulated.
The amount of the court fee to be charged by the Court of Appeal depends on the nature and amount of the claim. This varies from € 332 for a natural person with a claim of indefinite value to € 5,517 for a legal person with a claim of € 100,000 or more (rate 2020). Both parties also pay their own lawyer. In the event of success, just as in the first instance, a cost order follows, whereby the other party is generally ordered to pay the costs of the proceedings of the other party. These consist of the court fees paid in both instances, bailiff costs incurred and a lump sum of attorney fees.
In most cases, the period to bring an appeal is 3 months. In the case of summary proceedings, the appeal period is four weeks.
The courts have the possibility to file an emergency appeal against a judgment in summary relief proceedings. The question of whether a case is actually treated as an emergency is at the discretion of the Court of Appeal and the decision whether or not to handle a case as an emergency is not further substantiated. However, there is not too much capacity available at the courts, which reduces the chance that a case will actually be treated as an emergency. An example of a successful emergency appeal is the decision of the Court of Appeal in The Hague of November 22, 2019 in the case in which the judge in interlocutory proceedings had ordered the State of the Netherlands to do everything necessary to bring the children of Syrian IS brides back from the camps in Syria.
We act in higher appeal cases. Are you considering appealing? Or does your opponent appeal? Would you like to discuss your case without obligation with an admitted attorney? Then please contact us. We like to help you. Not for nothing is our motto: "Your problem, our concern."
Hein Kernkamp will gladly help you further.