Default of appearance and objection

When the defendant does not show up during the proceedings, the court grants default of appearance.

This means that the court formally notes that the defendant has not appeared and puts this on record procedurally.

The consequence of default of appearance

If a defendant does not appear during a procedure, the court will check the claims of the claimant relatively briefly.

The court has to/can check only a limited number of points of the claimant on correctness ex officio (on own initiative, without the defendant bringing up these points). For most statements made by the claimant, the judge must assume that they are correct, as long as they are not objected.

As a consequence, in general the judge will allow the claim, when the defendant does not appear during the legal proceedings.

The claimant is obliged to notify the defendant on this in the writ of summons. For that reason, most writs of summons contain the remark:

“With notice that the court will allow the claims when the prescribed terms and formalities have been respected and the defendant does not show up in court, unless the claims appear unconvincing and/or implausible”

Exonerate the default of appearance

It occurs that the court does not immediately gives its (final) ruling when the defendant is granted default of appearance. In that case the defendant can appear in court and exonerate the default at any given moment between then and the final ruling. When the defendant exonerates the default of appearance in time (i.e.: before the final ruling), he or she should be offered the opportunity to put forward a defence.

Objecting against a ruling after default of appearance

When a judge has allowed the claims of the claimant by default, the defendant can object against that ruling. Objection should be lodged at the court that has issued the ruling and is done by a notice of objection, in which the defendant explains why he thinks that the court has allowed the claims in the ruling after default of appearance unjustly or incorrectly.

The notice of objection is issued by a bailiff’s notification, delivered by a bailiff.

The term for objection amounts four weeks

The term for objection amounts four weeks (28 days), from:

1. The date on which the ruling is delivered personally to the defendant by the bailiff; of
2. The date on which the defendant conducts an act that necessarily shows that he is aware of the ruling or its meaning; or
3. The date on which the ruling is executed.

It may be well imagineable that these three moments do not take place at the same time. When that is the case, the term for objection starts on the day that the first of these three situations takes place.

In principle objection does not suspend execution

Under the law the objection suspends the execution of the ruling, unless this has been declared provisionally enforceable.

This seems to show that the objection suspends the execution in principle. But now judges declare their rulings provisionally enforceable, the main rule is that objection does not suspend the execution.

Exception 2: Appeal after granting of default of appearance

When the claimant has involved two of more defendants in the case and at least one of them shows up during the proceedings, the judge grants default for the defendant that has not shown up, but the ruling cannot be qualified as a default judgement. The defendants that have not shown up can not lodge an objection in such cases, but have to lodge an appeal.

In that case the term for appeal is not equal to the term for objection as mentioned above, but equal to the term for appeal of the defendants that have shown up. In general, this term is three months, to be counted from the ruling. Although the term for appeal is three months, while the term for objection is four weeks, the term for appeal often expires at an earlier point than the term for objection, because the term for appeal starts directly at the day that the ruling is given, while the term for objection starts (much) later in general.

Exception 1: the term for objection for non-residents of the Netherlands

When the defendant does not have a known residence or actual stay in the Netherlands, but does have a known residence or actual stay outside the Netherlands, the term for objection for this defendant amounts 8 weeks. This can be explained by the fact that in general it will take more time for that defendant to become aware of the started term of objection.

Beware! 1 ruling, but several defendants? Different terms of objection possible!

Because the term for objection does not start at a fixed moment ánd the term for objection for Dutch residents and non-residents differ, it will often occur that the terms against the different defendants start and end at different moments, when several defendants have been summoned.

Beware! Strict application of terms for objection

For both claimants and defendants, it is advisable to observe the terms for objection carefully. Judges apply these terms (with few exceptions) strictly.

The rule applies that the claimant must inform the court that the term for objection has expired. Because the term does not start at a fixed moment, the court can not check whether the defendant has lodged the objection in time or not.