The Supreme Court either refers the case or disposes of it itself
If the Supreme Court sets aside the contested judgment, it usually refers the case to a lower court (the court of referral) ‘for further handling and decision’. The case is typically referred to a court other than the one that delivered the judgment that has been set aside. Sometimes, the Supreme Court can dispose of the case itself if it considers that a certain outcome is inevitable. This occurs only exceptionally.
Statement after referral
Success in cassation is no guarantee of success after referral. A sound ‘statement after referral’ – the document with which the proceedings are resumed at the court to which the case is referred – that presents the case to the referral court in the best possible way, in line with the special rules applicable to referral proceedings, can make the difference between ultimately winning or losing the case. Cassation lawyers often assist in drafting a statement after referral, given their understanding of the precise implications of a Supreme Court judgment for the remainder of the proceedings. Houthoff’s Supreme Court Team has the expertise and experience to provide strategic guidance to parties at this stage as well.
The scope of the debate at the referral court
It is up to the parties to bring the case to the referral court. It is usually clear which party has the greatest interest in continuing, and that party will take the initiative.
Once a case has been set aside and referred, the first step is to determine which issues are still in dispute and which are not. Decisions in the judgment contested in cassation that were not the subject of a cassation complaint, or that were challenged unsuccessfully, remain intact. Decisions that were successfully challenged no longer stand, and to that extent the case must be re-examined. If a complaint was lodged against a finding but the Supreme Court did not consider that complaint, the referral court is not bound by the finding in question. To that extent, too, the case must be re-examined.
In principle, there is no scope for raising new facts and arguments in the referral proceedings. However, there are exceptions to this rule. For example, in the referral proceedings, the parties may rely on developments that have occurred since the judgment that was subsequently set aside.
Limited scope for review following referral
The referral court must, in its further handling of the case, comply with the Supreme Court’s decisions. That applies both to decisions on points of law and to decisions on the interpretation of the contested judgment and the procedural documents. The referral court must also follow any directions from the Supreme Court regarding what is to be re-examined following the referral and the manner in which this is to be done.
