Subpoena not served, now what?

Subpoena not served, now what?

The law states that a subpoena must meet all kinds of requirements. And rightly so: a summons initiates legal proceedings, and the consequences of this can be significant. Another important requirement is that the plaintiff must send the summons to the court in good time. This is called ‘filing’. Once the summons has been filed and the defendant has responded, a date is set on which the defendant may present their defense. If the defendant does not respond, then mitre granted and the claim is (usually) awarded. But what if the claimant does not file the summons? Trial lawyer Robert van Ewijk explains what the consequences are.

Remedial action in case of defects in the summons

The law stipulates a number of requirements for a summons. For example, the summons must be served by bailiff and must state the place of residence of the plaintiff and the date of the hearing. If this information is not correctly stated in the summons, the summons is invalid. Even if the summons is served on time, the case will not be heard. In that case, Article 120 of the Code of Civil Procedure the possibility of remedying those defects before serving the summons. The bailiff does this by means of a so-called writ of remedy.

Summons not served? 

The claimant must file the summons with the court no later than one day before the date specified in the summons. If this is not done, the proceedings will lapse. The lawsuit will then be ‘off the table’. The law also offers a remedy for this. In Article 125(5) of the Code of Civil Procedure states that the pendency only expires definitively if no writ of restoration has been issued within two weeks of the first roll date.

Consequences of the discontinuance of proceedings

The question of whether a case is no longer pending can have major consequences. For example, the law includes a limitation period for some claims. This stipulates that a claim expires if proceedings are not instituted within a certain period of time. If the proceedings are no longer pending, the right to claim also expires. In addition, the lapse of the pendency may have consequences for a claim that has been lodged. prejudgment attachment. That seizure may be carried out on condition that the proceedings are brought within a certain period (usually two weeks) after the seizure. If those proceedings are not brought within that period, the conditions for the seizure are no longer met and it lapses.

Trial lawyer

Lexys Advocaten specializes in procedural law. If you need help or advice on procedural law issues, Lexys is the right place for you. For more information about what a procedural law attorney can do for you, please contact us. contact with us.