Practice area Civil cassation

 Our cassation team (led by lawyer with right of audience at the Supreme Court Mr Tom van Malssen) handles cases within the entire civil-law spectrum: from disputes about contracts (for example ECLI:NL:HR:2019:1242) and wrongful acts issues (for example ECLI:NL:HR:2019:225), expropriation discussions (for example ECLI:NL:HR:2019:757) and disputes relating to employment law, health insurance (for example ECLI:NL:HR:2019:853), property law, IT law, insolvencies or procurement (for example ECLI:NL:HR:2020:802), up to procedural law issues (for example ECLI:NL:HR:2020:429; ECLI:NL:HR:2020:587).

What is cassation?

The term cassation comes from the French verb ‘casser’ which means ‘breaking’: ‘breaking’ a decision of the lower court. This already implies the ‘specific’ character of cassation. Cassation cannot be compared to an appeal. It is not a regular retake and there is no integral reassessment of the case. All the facts are established, and that also applies to most rulings of the court (of fact). In cassation, it is exclusively assessed whether the law has been applied correctly and whether essential forms - in particular the requirement to give reasons - have been observed. Usually, this will be the case. Sometimes, however, a rule of law has not been recognised properly, or a decision is insufficiently motivated. In that case, the Supreme Court will ‘break’ (read: squash) the judgment in question and (usually) refer it to another court for the further settlement of the case.

Cassation, when is it possible?

As a rule, it is possible if a court of appeal has given a final judgment. Sometimes, however, a court of appeal divides its final ruling over various partial judgments. In that case, cassation is possible against the individual partial judgments. In addition, it is possible to request a court of appeal to allow an interim appeal in cassation against interlocutory rulings that contain so-called ‘binding final judgments’. These are usually important building blocks for the final judgment.

What do cassation proceedings look like?

Before an appeal in cassation can be lodged, an opinion on cassation must first be issued on the positive and negative chances of a cassation appeal against an unfavourable court judgement. If the advice is positive, a cassation appeal can be lodged, in principle within three months (and in summary proceedings within eight weeks) after the court judgment against which the cassation appeal is directed has been given.

The cassation court document (formerly a writ of summons, nowadays called initiating document) must contain the grounds on which the appeal in cassation is based. In short, these are the separate complaints against (parts of) the judgment of the lower court. Subsequently, the respondent in cassation can submit a statement of defence and possibly also lodge an appeal in cassation at the same time, whether or not under the condition that the cassation appeal is successful by the party that first appealed. Also on the desirability of such an appeal, a cassation advice should first be obtained from a lawyer with right of audience at the Supreme Court.

The next substantive procedural document is the ‘written explanation’, a procedural document that is submitted by the claimant and the defendant at the same time and in which the cassation grounds, and the defence against those, are further elaborated on. The parties can respond briefly to each other's explanation in a reply and rejoinder.

After these documents have been exchanged, the debate between the parties is closed and the case file is handed over to the Procurator General's Office at the Supreme Court for the so-called Opinion of the Procurator General. This is an independent and legal advice to the Supreme Court on the way in which the Supreme Court, in the view of the Procurator General, should judge the cassation appeal.
Both parties are permitted to respond briefly to the Procurator General's opinion in a 'Borgers letter', this as a result of a judgment of the European Court of Human Rights confirming the right to such a response. Finally, the

Supreme Court delivers judgment.

If the Supreme Court declares one or more complaints well founded and squashes the judgment of the lower court, it will sometimes settle the case itself, bringing the proceedings to a definitive end. Usually, however, the case will be referred to a lower court other than the court whose judgment has been quashed. This court must then proceed to settle the case, with due observance of the judgment of the Supreme Court.

Requests for preliminary ruling

Since 2012, lower courts (subdistrict courts, district courts, courts of appeal), whether or not at the request of the parties, can submit requests for preliminary ruling to the civil division of the Supreme Court if the answer to these questions is of direct relevance to, in short, a large number of other cases. If the lower court asks such questions, the Supreme Court will give the parties the opportunity to submit ‘written comments’ in response to the questions asked. However, these observations cannot be submitted by the parties themselves to the Supreme Court, but only by a lawyer with right of audience at the Supreme Court. Our lawyer at the Supreme Court can assist you in drafting and submitting such comments.

Litigation assistance during proceedings in fact-finding instances

We can also advise you in cases in which there are complex appellate procedural issues or in cases that - for whatever reason - may at any time become subject to the judgment of the Supreme Court. On appeal, the seed is usually already sown for a possible cassation appeal and determines the room for manoeuvre within cassation proceedings. The chances of a successful cassation appeal can be significantly increased if in the last fact-finding instance (usually proceedings before a court of appeal) a possible cassation procedure is already considered.

Tailored work in cassation

It is possible to come to tailor-made agreements. For example, at relatively limited costs it is possible to carry out a quick scan on a court judgment against which cassation appeal is possible, so that you can immediately make an initial assessment of your legal position. Fixed price agreements are also available.

Please note: In view of the cassation periods and the fact that the grounds of cassation (other than on appeal) must already be included in the first procedural document, it is important that you bring the contested judgment to our attention as soon as possible if you are seriously considering a cassation appeal.