Enforcing a judgment that should never have been issued

A Dutch company I represented had provided services to a German customer. The invoice that was sent to the customer for this work was not paid.

As my client’s standard terms and conditions stated that the services were carried out in the Netherlands, under European legislation we were able to make a claim against the German customer before the Dutch courts. We duly issued a claim.

As it generally takes a long time for a writ to be served on the defendant in another country (even in Germany this can take several months) it was decided that a period of several months should be allowed between the time when the writ was sent to the German authorities for service and the first planned date for the case to be dealt with or heard.

Despite these measures, the writ was finally served on the German customer a week after the first hearing. As I had no proof of service yet, I had asked the Dutch court prior to the first hearing to suspend the case. However, the Dutch court rejected this request and referred the case to the next available date for issue of a judgment, without any evidence of service (which had not yet taken place).

As the judgment had to be implemented in Germany, the Dutch court was asked to provide its assistance. The Dutch court issued a document to enable enforcement.

Using this document, an application was made to the German courts for leave to enforce the judgment in Germany. The German court granted leave, following which the German authorities were able to proceed to enforce in accordance with the Dutch judgment.

Action to enforce the judgment commenced and the German customer made an application to the German court objecting to this. He took the view that a judgment cannot have legal force if it is issued before the writ has been served on the defendant.

Of course, purely on instinct I completely agreed with him. The idea that a court can give judgment against you before you’ve been told about the proceedings and called to court goes against my legal principles too.

However, in the European Union there is an agreement that in certain circumstances a judgment can still be enforced even if the writ has only been served on the defendant after the first hearing. For example, if the defendant still has legal recourse against that judgment in the Member State where the proceedings to which the writ relates are taking place.

This applied in this case. As the German customer did not appear in the Dutch proceedings, judgment was given in default. This meant that he was able to oppose the judgment. The period for submitting opposition commences on the date when the party against whom judgment is given first takes action that reveals that he is aware of the judgment. As the customer lived in Germany, the period for submitting opposition was eight weeks. Opposition must be submitted to the court that issued the judgment (in this case, the Dutch court).

As the customer only “objected” against the enforcement of the judgment in Germany (and not in the Netherlands) and did not submit an opposition, even though the need to do so was pointed out to him in the “German proceedings” that he commenced, the period for opposition expired, which resulted in the Dutch judgment becoming irrevocable. As there had been a possibility of legal recourse against the Dutch judgment, even though that possibility had expired, the German court had no option but to reject the customer’s “objection” to the enforcement.

This meant that it was possible to enforce a judgment that, in my opinion, should never have been issued. I believe that the Dutch court should never have given judgment without any proof of service (as I told the court beforehand). However, I should add that the German customer never provided any proper reasons as to why he did not pay the invoice. So I’m certain that the claim would still have been granted if the proceedings in the Netherlands had taken their proper course.

This case just reinforces the importance of responding immediately if you receive a writ, especially if it is a “foreign” writ. The Dutch rule that a writ must be received eight days before the first date on which the matter will be heard doesn’t always apply, as shown by this example.

The same case also shows that you need to take extra care in pursuing legal remedies and choosing the court where you do so. Failure to pursue legal recourse, or to pursue this before the correct court, can result in an incorrectly issued judgment still becoming irrevocable. In that case, you may be required to do something (such as paying money) even though the situation seems unfair to both the defendant and the claimant.