Damage state procedure: our trial lawyer is the specialist

The damages state procedure is a special arrangement in Dutch civil procedure law (article 612 et seq. of the Dutch Code of Civil Procedure) aimed solely at determining the extent of the compensation. The liability of the defendant is then already established: it has been assessed and confirmed in an earlier main case. In that first case, the court usually orders the liable party to pay compensation for ‘the damage, to be recorded’. Only then does the damage assessment procedure come into play, in which only the amount and composition of the damage is determined. The question of whether the other party must pay can no longer be discussed at this stage.

Law and case law on damages state procedure

The current provisions on the damages state procedure can be found in articles 612-615b Rv. According to established Supreme Court case law (e.g., HR March 24, 2023, ECLI:NL:HR:2023:428), (1) the basis for liability must have been established in the main case and (2) the possibility that damages exist must be plausible.

What is the damage state procedure for?

Originally the scheme served in part to increase court revenues, but today efficiency is the overriding reason. By dealing with liability first, parties and courts do not have to immediately delve into often costly and complex damage calculations. Indeed, if it turns out that the defendant in a case is not liable at all, such calculations are unnecessary. Moreover, after a liability verdict, parties can often reach a settlement out of court, which may even prevent a second trial. Finally, this approach offers advantages if the damages cannot yet be fully substantiated or only become apparent later.

Court fees in proceedings on the merits in case of claim for referral to damages state

Another reason plaintiffs sometimes choose not to assess their damages immediately in the proceedings on the merits, but instead seek referral to damages state, is to avoid a high court fee avoid. In fact, that court fee is based on the pecuniary importance of the case. The greater the pecuniary long, the higher the court fee. In the event that the claim would be dismissed, this also means that the court cost order (which includes the court fee) is also lower. If no amount of damages is claimed but only reference to the statement of damages, it is defensible that it is a ‘matter of indeterminate value’, which falls in the lowest court fee rate. However, vigilance is required here. The North Holland District Court ruled on July 25, 2024 (ECLI:NL:RBNHO:2024:8646) that if the subpoena shows the amount of damages, the rate of court fees may then be based on that amount.

Lawyer specializing in damages state

Thus, the damages state procedure is more of a continuation of the main case, but it has its own procedural rules. The final judgment in the main action has binding force. Exceptions or counterclaims that should have been raised at that time cannot be raised again. The ruling in the main action is a final judgment, against which in those proceedings timely remedies must be employed. The damages state procedure cannot challenge the basis again. At the same time, damages state proceedings are independent proceedings. Summonses must be served again, court fees paid and an attorney appointed.

Opportunities and pitfalls of the damages state procedure

What is often forgotten (and this is a shame) is that with a judgment citing the statement of damages, foreclosure can be laid. One pitfall, however, is that the damages state procedure can also be negative. Indeed, after the first case won, a damages state may decide that there is although liability exists, no damages. That is why it is important to hire a specialist to represent you in a claim state proceeding. At Lexys, you can find that specialist.

Getting damage done at state

Referral to the damages state procedure is only possible in a summons procedure. The court then decides ex officio whether the damages can be assessed directly (and thus no referral is necessary) or whether a damages state procedure is necessary. It suffices that it is plausible that damages have been or will be suffered. The damages state then starts with a summons specifying the specific items of damage. The proceedings continue as an ordinary civil bottom.

What is the damage statement about?

All questions concerning the extent and causality of the damage, such as mitigation or fault, may be raised during the statement of damages. New or subsequently revealed items of damage may give rise to a second damage assessment procedure, provided this is in accordance with the due process of law. Ancillary claims that do not concern damages, such as performance, are not possible.