Appeal

If you disagree with a court ruling, you can usually appeal. However, the ruling made at first instance is binding until otherwise decided on appeal. An appeal involves a higher court judge (of the trial court) reviewing the substance of the case again.

Who can appeal?

Not only the ‘condemned’ party can appeal, but also the person who was proven right. This may be the case, for example, if not all the claims have been awarded, but also if the court has established certain facts in the verdict, which may later prove detrimental. The person filing an appeal is called the appellant. The defendant on appeal is referred to as the respondent. Unlike proceedings at first instance, representation by an attorney is always required on appeal. Even if the case at first instance is brought before the cantonal court served. In addition, an appeal can only be filed if the financial interest of the case exceeds €1,750 (price level 2023).

Appeals process

The appeal begins with a subpoena (in a subpoena proceedings) or appeal (in the application procedure). By appealing, enforcement of the challenged judgment is suspended unless it is enforceable. In that case, a stay of execution can still be requested, but is not often granted.

Grounds of appeal

In the summons or notice of appeal, the appellant's lawyer usually does not yet have to explain why the court's ruling should be set aside. This is done only in the so-called statement of grievances. The attorney for the respondent responds to this in writing in a memorandum of reply. The court can then schedule an oral hearing. This used to be called oral argument or appearance of the parties. Finally, the court rules in a judgment (in writ proceedings) or order (in petition proceedings). In the ruling, the court of appeal declares the appeal (partly) founded or (partly) unfounded and upholds or overturns (partly) the ruling of the lower court. In addition, the court of appeal will say something about the legal costs at first instance and on appeal. If you disagree with this ruling, you can still appeal in cassation at the Supreme Court.

Appeal pitfalls and concerns

Litigation on appeal is a profession of its own. First, because it is based on the so-called grievance system. This means that the court of appeal only annuls those parts of the judgment against which a grievance is directed. The rest remains intact and thus continues to bind the parties. Another pitfall lies in the fine print of the law. For example, the appeal deadline is usually three months, but a different deadline applies in some cases. That deadline may be hidden in the law. This is the case, for example, in cases involving the annulment of a decision of an Owners' Association. This is subject to an appeal period of only one month and, moreover, a detailed notice of appeal must be submitted immediately. This is ‘hidden’ in the second sentence of article 5:130 paragraph 3 of the Civil Code, whereas you would rather expect this provision in the Code of Civil Procedure. It is therefore quite often overlooked. Also for the summary proceedings a different appeal period applies, namely 4 weeks. In addition, an appeal cannot be filed against a default judgment. The only legal remedy available is resistance.

The biggest pitfall: the remedies registry

Then finally, the biggest pitfall, which is the remedies registry. Because even if you think you have thought of everything, things can still go wrong. For example, if an appeal is lodged in a case in which it is stipulated that the judgment will take the place of a deed of transfer of immovable property, the appeal must be entered in the so-called remedies register within 8 days. If this does not happen, the appellant is inadmissible. So then it is the end of the matter.

Lexys Lawyer specialist litigation on appeal

Appeal is an important legal remedy that gives parties to a lawsuit a second chance to still win their case. However, there are some hooks and eyes when lodging an appeal. Would you like to know more about lodging an appeal correctly and on time, or about the best way to litigate in your case? Please contact the litigation specialist at Lexys Advocaten.