Just as in criminal law, civil law has a summons. This is issued by the plaintiff and is addressed to the defendant. In the summons, the plaintiff sets out his statements, positions and evidence. This allows the defendant to see what the plaintiff accuses him of and what the claim is. The defendant can now prepare for the hearing and defend himself if this is desired.
A summons is the first document in the legal procedure. The plaintiff sends this summons to the defendant, after which the bailiff serves it on the person in question. The summons contains the claimant’s claim, set out with positions, statements and evidence. The defendant now knows that he is being summoned to appear in court and, in addition, he can refute the plaintiff’s claim with his own positions and evidence in a statement of defense.
A summons is issued by writ. A writ is an official report regarding an official act performed by the bailiff, art. 45-66 Legal procedure (hereinafter: Rv). A writ is often used to convey messages to a person. In our case, the summons is issued by writ, the defendant is summoned to court. The rules regarding the summons are included in art. 111 to art. 124 Rv. For example, this states that the summons must contain the details of both parties. The summons also tells you more about which judge will hear the case and on what date (role date) the designated judge will hear the case. The summons also contains information for the defendant. For example, how he should respond to the summons, in most cases by means of a statement of response. It also states what happens if the defendant does not appear at the hearing. Finally, the summons contains the plaintiff’s demand. This requirement is reasoned and substantiated with evidence. The summons must also mention the lawyers of both parties. This only applies to the civil sector, where legal representation is mandatory. If there is an error in the designation of parties in the summons, this can sometimes lead to inadmissibility of the claimant. However, this is not the case in all cases. If it is clear to the other party from the outset which requirement is intended, one can, on the basis of art. 3:33 yo. 3:35 Bw does not say that the claimant is inadmissible. This is possible if the other party has not been harmed in its defense or has been disadvantaged in some other respect.
Service of the summons
The summons is usually prepared by the plaintiff’s attorney. This person then sends the summons to the bailiff, who serves the summons on the defendant. This service can be done in three ways, which I will discuss below. First, the defendant can be served in person, art. 46 paragraph 1 Rv. The bailiff does this by going to the specified address known to the Municipal Personal Records Database. If the defendant is at home and receives the summons, it is served in person. Even if the defendant refuses the summons, it will be served in person. If the defendant is not at home, the bailiff can look at art. 46 and 47 Rv. First of all, the bailiff can leave a copy of the summons with a housemate of the defendant, for example a member of the family. In addition, there may be no family members in the house, but another person opens the door. The bailiff can also give this person a copy if it is likely that the summons will reach the defendant as soon as possible. If the family member or other person present does not give the summons to the defendant, this will not lead to nullity of the summons. This is at the defendant’s risk. Finally, if no one is found, the bailiff can place a copy of the summons in an envelope and leave it for the defendant. Finally, the bailiff may not be able to reach the defendant’s home due to extraordinary circumstances. This includes floods or events of a similar nature. The bailiff can now send the writ to the defendant in a closed envelope. If the defendant does not reside in the Netherlands, a different procedure will be followed. First of all, it must be determined whether the defendant lives within or outside the EU. If he lives outside the EU, art. 55 Rv: service to the public prosecutor with forwarding to the Ministry of Foreign Affairs. This is a public, diplomatic subpoena. If he does live within the EU, then art. 56 Rv: the bailiff sends the summons to the so-called receiving agency in the EU Member State. The document states that it has been sent and that it contains some information about the situation and the defendant.
The plaintiff must summon the defendant to court. For this, the claimant must find out which court has jurisdiction. First of all, absolute authority presents itself: civil sector or cantonal sector? The claimant must then ask himself which court in our country has jurisdiction (except for courts abroad). Once the plaintiff has established this, it must be determined on which day the defendant will have to appear in court. Art. 114 Rv tells us that there must be at least one week between the issuance of the summons and the hearing date. This period is extended if the defendant lives abroad. In addition, it is important that the claimant knows on which day the judge in question is sitting. A hearing cannot be held on another day!
Art. 111(2) DCCP requires the plaintiff to include the grounds for his claim in the summons. He does this by adhering to the principle of individualization. Under this theory, the plaintiff must state something and then state why the statement is true. The claimant invokes a right and describes this right and why he thinks he has this right. The claimant does not have to indicate how he obtained this right or how this right arose. Furthermore, the claimant must state in the summons which facts are important and which consequences he would like to see. If the plaintiff issues a summons that is very unclear or contradictory, the judge cannot do anything with it and the other party does not know what to defend itself against. This is called an obscure dragonfly. The plaintiff is also obliged to include the defendant’s claims and objections in the summons. This concerns statements by the defendant that are known to the plaintiff before the summons is issued. This gives the judge more facts than if the parties always focus only on their own positions and statements. This is called the obligation to substantiate. The plaintiff can immediately refute the defendant’s positions that the plaintiff must include. This refutation must actually be substantiated with evidence, but this is only the case when it concerns points on which the defendant has put forward a defense and when the burden of proof lies with the plaintiff. This is called the obligation to provide evidence.
The claimant must describe his claim clearly and well. He must indicate to the defendant what exactly he wants and it must also be clear to the judge what exactly he has to judge. Often a claim is so complicated or a claimant does not know how to describe the claim that there is a risk that the judge does not agree with the claimant’s claim and rejects it as such. This may be the case, for example, if it is unclear whether there has been an unlawful act or breach of contract. It may also be that one does not know exactly whether compensation can be claimed and how much that compensation is. To avoid confusion and rejection of the claim, the claimant often formulates a primary and one or more subsidiary claims. The primary claim relates to the main claim (the legally most far-reaching claim), the subsidiary claim relates to the lesser claim (so depends on the facts that are considered proven). If the claimant does not yet know exactly how much the damage is when entering into a procedure and therefore cannot yet claim an exact amount of compensation, a damage assessment procedure can be initiated after the main procedure. This procedure follows an earlier, main procedure, in which it was determined whether the defendant is liable for damages or not. If this is the case, the claimant can claim compensation in a second procedure, the damage assessment procedure, if the amount of the damage is known. In addition to the main claim, there are also so-called secondary claims in our country. These are claims that are in addition to the main claim and which the court can also grant or reject. One of these secondary claims is the provisional declaration of enforceability of the judgment. This means that the plaintiff can have his judgment (if he is right) immediately enforced against the defendant, even if the defendant appeals. If this has not been raised as a secondary claim, the judgment may not be enforced if the defendant files an appeal or cassation. The plaintiff can also ask the judge to order the defendant to pay the legal costs or ask to pay the statutory interest on a certain amount. The imposition of a penalty also occurs.
Nullity of the summons
If a summons is declared null and void, the lawsuit cannot proceed with the relevant summons. A nullity in the summons is not easily accepted. If the plaintiff has forgotten to include certain matters in the summons, this can be remedied by a recovery writ. If this is not done, nullity will follow. In addition, the defendant himself may ask for the summons to be annulled. The judge must then investigate whether the error or incorrect service of the summons contributes to the fact that the defendant has not been able to properly defend himself or has been harmed in another interest. If the defendant does not appear at the hearing, the judge will investigate whether the summons contains nullities. It is checked whether the summons has been received by the defendant and the address is checked. If the summons has not been received due to a defect, the summons is null and void. If the summons has been received, despite the defect, the judge will often order a new hearing day. Repair of the defect is then requested from the claimant.
- The court proceedings
- Principles of Civil Procedural Law
- Default and opposition in civil law