Civil cassation proceedings in detail

The various stages in civil cassation proceedings

1. The appellant’s cassation lawyer files an initiating document setting out the complaints and specifying the deadline by which the respondent can appear in the proceedings.
2. In claim proceedings, the court clerk uploads a notice of appearance for the respondent to the online portal. The appellant must ensure that this notice is delivered to the respondent.
   In application proceedings, the court clerk sends a copy of the initiating document to the respondent.
3. The respondent’s cassation lawyer can subsequently file a statement of response. In claim proceedings, no substantive defence is usually put forward against the cassation complaints; rather, the respondent will simply take the position that the appeal before the Supreme Court should be dismissed. If the respondent also wishes to raise their own complaints (a ‘cross-appeal in cassation’), this must be done directly in the statement of response. In that case, the original claimant or applicant may, in turn, also file a statement of response against the cross-appeal in cassation. This statement of response typically just reiterates the position that the cross-appeal in cassation should be dismissed.
   In application proceedings, statements of response usually do contain a substantive defence.
4. Approximately three months after the statement of response has been filed, the parties in claim proceedings can simultaneously file a ‘written explanation’. The explanation provides the appellant with the opportunity to elaborate on the cassation complaints, while enabling the respondent to elaborate on their response. Parties sometimes choose not to submit a written explanation, for example where the complaints have already been sufficiently addressed in the initiating document. In some cases, an oral hearing is held in addition to or instead of the written explanation.
   In application proceedings, the explanation of the complaints and the response is usually incorporated into the initiating document and the statement of response. Further written explanations are therefore extremely uncommon in application proceedings.
5. The parties may respond to each other’s written explanations (by reply and rejoinder), generally within 14 days of the written explanation being filed.
6. The next step is for the procurator general to issue advice (an ‘opinion’) on the case. In practice, the opinion is often issued on behalf of the procurator general by one of the advocates general. This generally takes place four to six months after the reply and rejoinder. The opinion constitutes an independent recommendation to the Supreme Court as to how the case should be resolved. Although the Supreme Court is not bound by the opinion, it frequently concurs with it.
7. The parties are entitled to respond to the opinion by letter (a ‘Borgers letter’) within 14 days.
8. The Supreme Court usually delivers its judgment around four months after the opinion was issued, but the timing may vary from case to case.

Oral arguments before the Supreme Court are rare

Proceedings before the Supreme Court are usually conducted entirely in writing. Oral arguments (also known as ‘oral proceedings’ or ‘hearings’) are uncommon, although the Supreme Court will in principle allow them to take place upon request. The fact that the parties almost never request leave to present oral arguments is linked to the Supreme Court’s role. The Supreme Court does not re-examine or re-establish the facts of the case, but merely reviews whether the Court of Appeal’s judgment is legally correct and comprehensible in light of the case file. This review lends itself perfectly to a written exchange of arguments. As a result, a physical hearing will often add little value. Oral arguments are primarily heard in cases where such added value does exist: ones that attract a great deal of public attention or that revolve around physical objects or visual material.