Publication in law review
JOR 2018/199 met annotatie van mr. A. Steneker
JIN 2018/136 met annotatie van N. de Boer
Avonwick, appellant in cassation, has brought proceedings against Castle before the English court. Avonwick requested the English court to permit Vi Holding, respondent in cassation, to be joined, which was granted. Avonwick also filed an amended claim form with claims against Vi Holding before the English court. Subsequently, on May 18, 2015, Avonwick attached by garnishment against Vi Holden in The Netherlands. The Dutch provisional relief court issued a garnishee order, setting a 14 day time limit to bring a claim in the principal action. Avonwick requested the English court to extend this (statutory) time period within which the amended claim form had to be served. This request is granted. The amended claim form was finally served to Vi Holding on 21 January, 2016, within the extended period for service. In this case, Vi Holding seeks the lifting of the earlier mentioned attachments, stating that the grounds for the attachments are terminated by operation of law in accordance with art. 700 §3, last sentence, of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv), since Avonwick did not bring a claim in the principal action in time. The Dutch provisional relief court dismisses this claim. However, the Dutch court of appeal allows the claim. To that end, it considered, in summary, that although Avonwick argues that according to English law the proceedings had been instituted by the filing of the amended claim form, the ex parte nature of this amended claim form, in the light of the interests of the judgment debtor, prevent it from being considered as bringing a claim in the principal action under Dutch law. According to the court, the filing of a motion to join and the filing of the amended claim form precede the actual instituting of legal proceedings against a person (in a manner known to that party) and therefore do not meet the requirement of art. 700 §3 Rv. The appeal to the Supreme Court is directed against this ruling.
The Supreme Court rules as follows. The words ‘claim in the principal action’, as used in art. 700 §3 Rv, have to be interpreted broadly. According to the legislative history, a claim in the principal action does not necessarily have to be brought in the Netherlands. It is important to note in this context that there have to be sufficient procedural safeguards and the date of submission a claim has to be sufficiently established. To determine when ‘a claim in the principal action is brought’, as meant in art. 700 §3 Rv, the moment the opposing party (judgment debtor) is informed about the bringing of the claim in principal action is irrelevant. The deciding factor is the moment at which the claim in the principal action is brought. The ‘ex parte’-character of the procedural act does not, in contrast to the opinion of the Dutch court of appeal, prevent the bringing of a claim in the principal action. Under Dutch procedural law, a case may be pending by the submission of a procedural document, without this document having reached the other party or other interested parties. If a claim in the principal action is brought in a procedure abroad, the moment of lis pendens is determined according to law applicable in that country. It should be noted that the attaching party may not unreasonably slow down the procedure after bringing a claim in the principal action. The attaching party therefore has to take any necessary further steps with sufficient dispatch, in this case the service or notice of the originating or similar documents onto the other party. If the attaching party fails to fulfill this duty, this can be taken into consideration in the decision on lifting of an attachment.