When you are subpoenaed in a civil suit, you will be summoned to appear in court on a specific date. If you do not appear as a defendant on this date or if your lawyer does not act on your behalf, the judge will assess whether the formal requirements for summons and appearance have been met. If the court rules that the defendant has been summoned in the correct manner, but has not appeared in the proceedings or the court fee is not paid (on time), the court will grant default. 

The procedure is then maintained so that you can clear the default. If you do not clear the default in time, the judge will issue a judgment in absentia. Because you as the defendant have not put forward a defence, the court usually grants the claimant’s claim.

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Judgment in absentia

Before the court grants the claimant’s claim, the claim is subject to a marginal test: the court tests whether the claim appears to be unlawful or unfounded and whether the summons meets the legal requirements. In most cases, the claim is fully awarded. If demanded by the plaintiff, the judgment is declared provisionally enforceable. This means that an appeal or the lodging of an objection against the judgment in absentia does not suspend the execution of the judgment.

Resistance after default

You can still put forward a defence against the awarded claim by filing an objection. When the objection is filed in time and in the prescribed manner, the enforcement of the judgment is suspended. If the enforcement of the judgment was declared provisionally, the judgment is not suspended.

The objection procedure starts with a summons to oppose and is conducted before the same court that issued the default judgment. In cases where the defendant is unable to litigate in person, the opposition must be filed by a lawyer. In the writ of opposition, you respond to the content of the writ of summons, and you object to the reinforcement of the judgment. The case is reopened, and the judge makes another ruling.

The opposition period

It is not easy to object to a judgment in absentia, you must adhere to strict deadlines. In principle, the period for lodging an objection is four weeks. This term starts from:

  • The moment that the judgment or enforcement is known to the convicted person in person;
  • Committing any act from which it necessarily follows that the sentence is known to the convicted person;
  • The day on which the sentence was enforced.

The objection period is eight weeks if, at the time of the default judgment or act of notoriety, the defendant has no known domicile or known actual residence in the Netherlands, but his domicile or actual residence is known outside the Netherlands. Submitting the objection too late will ensure that the objection is declared inadmissible. In that case, the judgment in absentia cannot be revoked. It is therefore advisable to contact a lawyer as soon as possible after a judgment in absentia.

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Need help with a judgment in absentia?

Are you a defendant and do you have any questions about a summons received, and the time limits for appearing in court? VIOTTA’s lawyers will be happy to advise you on a judgment in absentia or the opposition proceedings against a judgment. Do not hesitate and contact us as soon as possible.

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VIOTTA is a law firm based in Amsterdam and is specialized in advising on the areas of corporate law, mergers and acquisitions, contract law and corporate & commercial dispute resolution. We advise in transactional matters and litigate in commercial disputes. VIOTTA provides legal advises to its clients on Dutch corporate law matters, such as corporate governance, board structures, director’s duties and liabilities, joint ventures and other collaborations. VIOTTA advises purchasers, sellers, management and other stakeholders in domestic and cross border mergers and acquisitions (M&A).

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