In urgent matters, the judge may be asked for an interim decision via preliminary proceedings. It regularly concerns a commandment or a prohibition. Examples of common commandments/prohibitions are a commandment to pay outstanding wages, a prohibition to publish or an eviction commandment/prohibition. In order to ensure that a provisional conviction achieves the desired result, the court may be asked to rule that an offence is punishable by forfeiture of a penalty payment.
In preliminary proceedings, it is also possible to sentence a defaulter to payment. This is possible if the existence and extent of the claim is highly plausible (e.g. if the debtor acknowledges the claim), there is an urgent interest and there is no restitution risk.
Conservatory attachment
A positive verdict may turn out to be a paper tiger if the debtor has no recourse. In order to prevent people from being left empty-handed after (sometimes years of) proceedings, the debtor’s assets can be attached. Examples include (third party) attachment of real estate, goods (a car, bank accounts), shares or claims (e.g. on wages or other amounts transferred to the debtor by third parties). It is also possible to attach debtor’s assets held by the creditor (self-seizure). Think not only of goods that the creditor has to deliver to the debtor, but also of money that the creditor has to pay to the debtor.
Moreover, the possibilities for attachment are not limited to the Dutch borders. Since the introduction of the European Bank attachment in 2017, it has been possible to conservatory attach bank accounts of debtors residing or established in a participating EU Member State.
Gathering evidence and information
The main rule is that a person who invokes a legal consequence of facts or rights has the burden of proof with regard to these facts or rights (art. 150 Rv). This applies not only to a claimant who brings a claim on the basis of certain facts or rights, but also to the person who invokes facts or rights to defend himself against a claim.
Sometimes, prior to or during proceedings, a party needs information in order to obtain a better picture of his legal position or to strengthen his legal position. The Code of Civil Procedure (CCP) provides the following ways to obtain information – and thus evidence – prior to or during proceedings:
- preliminary examination of witnesses (section 186 CCP);
- preliminary expert’s report (section 202 CCP);
- preliminary examination or inspection (section 202 CCP);
- application for inspection or issue (section 843a CCP, ‘obligation to exhibit’).
Collecting evidence at an early stage can prevent the loss of evidence. Also, a strong evidence position can contribute to an extrajudicial solution.
