Money claim in summary proceedings: can it be done just like that?

Suppose you have a money claim on someone and want to get them paid as soon as possible. You decide to make a summary proceedings start, understandably, because you may be waiting for that money and still have bills to pay. But beware, there are strict requirements that a money claim in summary proceedings must meet. Otherwise, the claim will be dismissed. In this blog, the collection lawyer from Lexys on how to collect a monetary claim in summary proceedings.

Summary judgment: quick ruling, but urgent interest required

Summary proceedings are known for their urgent nature and are therefore also known as emergency proceedings. In fact, the law states:

“In all urgent cases in which, having regard to the interests of the parties, an immediate injunction is required, the judge of injunctions has the power to grant it.”

If, in the judge's opinion, a case does not serve an urgent interest, the judge dismisses the claims. This is because a ruling in summary proceedings is a preliminary injunction. This means that the judge in summary proceedings cannot render a final judgment, but only a provisional one. Therefore, the judge bases his ruling in summary proceedings on his expectation of the ruling that a judge on the merits would make in that case. In a proceedings on the merits the court may therefore reverse the ruling of the preliminary injunction judge.

The refund risk

It is precisely the possibility that the judgment of the interim relief judge can be reversed in proceedings on the merits that has led to strict requirements for a money claim in summary proceedings. After all, if the judge on the merits rules that the money claim does not exist (or only awards a lower amount), the recipient must repay the money. But then he or she must actually return the money can pay, and not have already spent this again . Then a new problem arises. This is called the refund risk.

Therefore, a money claim in summary proceedings should not involve too great a risk of restitution. This is the risk that the plaintiff in summary proceedings will not be able to repay (refund) the amount paid by the defendant, if the defendant in proceedings on the merits is proved right. If this risk is too great, the interim relief judge will dismiss the claim.

Interlocutory appeal not a foregone conclusion in case of refund risk

Yet this does not mean that a monetary claim in summary proceedings is by definition hopeless if there is a refund risk. Indeed, on June 14, 2002, the Supreme Court (ECLI:NL:HR:2002:AE0660) held that a plaintiff's financial emergency, while admittedly posing a restitution risk, can create an urgent interest. This may even outweigh the restitution risk. Therefore, the interim relief judge must always make a careful balancing of interests, with the refund risk being only one of the relevant factors:

“3.4 Subsection 1.2 takes as its point of departure that under current law there is generally only room for provisional allocation of a monetary claim in summary proceedings, or at least of a contractual monetary claim in summary proceedings, if it is guaranteed that the amount allocated will be repaid to the defendant if the plaintiff is ruled against in the proceedings on the merits. The section cannot lead to cassation as this premise finds no support in law. When weighing the interests of the parties, the court will (only) have to take the restitution risk into account (see most recently HR 30 June 2000, C98/356, NJ 2001, 389). Also under the circumstances enumerated by the part, a rule as intended by the part does not apply. The section therefore fails.”

Plausibility of claim in money claim in summary proceedings

Another important requirement in a money claim in summary proceedings concerns the plausibility the existence of the claim. Thus, it must be sufficiently plausible that the monetary claim actually exists. It is therefore important for the plaintiff to substantiate the existence of the claim as well as possible. Therein lies often the difficulty of summary proceedings. This is because there is only limited room to provide evidence.

Urgent interest required in collection summary proceedings

In addition, as already mentioned, in summary proceedings there must always be an urgent interest, also in the case of a monetary claim in summary proceedings. As a plaintiff, you must therefore convincingly prove that you cannot wait for (longer) proceedings on the merits. If the defendant is in dire straits financially, this may give rise to the argument that the plaintiff has an urgent interest in her claim, as the plaintiff (while waiting for a judgment in proceedings on the merits) may not be able to recover her claim from the defendant in connection with a possible bankruptcy.

Specialized lawyer in collection summary proceedings

For more information on money claim in summary proceedings, contact our specialized collection lawyer.