Cassation lawyers
The cassation process begins with a judgment of a lower court in which a party has been wholly or partially unsuccessful and against which an appeal before the Supreme Court is available under the law. In civil cases, only members of the national Supreme Court Bar are authorised to lodge an appeal in cassation on behalf of their client or to respond to such an appeal. These lawyers are also known as ‘Supreme Court lawyers’ or ‘cassation lawyers’.
The purpose of the Supreme Court Bar
The Supreme Court Bar was established with the aim of preventing unmeritorious appeals in cassation and improving the quality of procedural documents. To qualify as a cassation lawyer, the practitioner in question must sit the Supreme Court Bar exam and satisfy ongoing experience requirements. Houthoff has one of the largest teams of qualified cassation lawyers in the Netherlands.
The first step: an opinion on cassation
A party wishing to lodge an appeal before the Supreme Court must therefore consult a cassation lawyer. This lawyer is legally obliged to provide an opinion on cassation before the appeal is lodged. The opinion is given in writing and addresses the appeal’s prospects of success as well as its costs, risks and overall merits.
The form and length of the opinion on cassation depend on the client’s needs. Sometimes it takes the form of a comprehensive document containing a detailed analysis of all decisions of the lower court (usually a Court of Appeal) and an assessment of the opportunities and risks involved in an appeal to the Supreme Court. Alternatively, it could be a concise email containing only the key rulings against which a complaint might realistically succeed. When determining their opinion, the cassation lawyer must also consider the potential final outcome of the proceedings. This includes assessing the risk that the other party might successfully bring its own complaints against the contested judgment (a ‘cross-appeal in cassation‘).
A cassation lawyer will endeavour to provide their opinion well before the expiry of the time limit for lodging an appeal in cassation. This ensures that – provided the opinion is positive – sufficient time remains to decide whether to lodge an appeal and to formulate and discuss the grounds on which the contested judgment is considered to be incorrect (the ‘cassation complaints’).
Negative opinion on cassation
Supreme Court proceedings offer only limited scope for challenging the Court of Appeal’s judgment. The Supreme Court can set aside the judgment only if it can be argued that there has been an error of law or an inadequate statement of reasons. If the prospects of success are too slim to justify lodging an appeal before the Supreme Court – and that is often the case – the opinion given must be negative. If so, the cassation lawyer will recommend accepting the Court of Appeal’s judgment and refraining from lodging an appeal. A negative opinion may also be issued where the prospects of success are good enough to warrant lodging an appeal. This is because it may be so that, even if the Supreme Court were to set aside the judgment and refer the matter to another Court of Appeal, the ultimate outcome of the case would be very unlikely to improve.
Complete case file required
To provide a sound opinion on cassation, the cassation lawyer must examine not only the judgment but also all the procedural documents submitted up to that point. This enables the lawyer to assess whether the Court of Appeal gave sufficient consideration to all the parties’ arguments and whether the case file contains an explanation as to why the Court of Appeal made certain findings that may not, at first sight, appear readily comprehensible.
Opinion on cassation must also be obtained before filing a response
The obligation to issue a written opinion also applies where a party wishes to respond to an appeal brought before the Supreme Court by the other party. In that case, too – before any response is filed – the cassation lawyer will give an opinion on the prospects and risks of the appeal and the response to it, the costs involved in the response, and the options for bringing a separate appeal (a ‘cross-appeal in cassation‘).
