Utaratibu wa tathmini ya uharibifu: kiasi cha uharibifu hurekebishwaje?

Damages assessment proceedings (schadestaatprocedure) are a follow-up procedure to fix the amount of compensation after a Dutch court has already held a party liable. The court refers the parties to them only if it cannot assess the damage itself in the main judgment, under Article 612 of the Dutch Code of Civil Procedure (Rv).

The proceedings start when a bailiff serves an itemised damages statement (schadestaat) on the liable party under Article 613 Rv. They build on the main judgment: issues already decided there, such as liability, cannot be reopened.

Ni lini mahakama inaweza kupeleka kesi kwenye kesi ya tathmini ya uharibifu?

Only when assessment in the main proceedings is not possible. Under Article 612 Rv, a court that awards compensation must in principle assess the damage in the same judgment.

The Supreme Court (Hoge Raad) confirmed this in its rulings of 10 October 2014 (ECLI:NL:HR:2014:2930) and 27 October 2017 (ECLI:NL:HR:2017:2774). The court must assess the damage itself where the facts allow, even if the claimant only asked for a referral, and it may estimate the damage on the basis of concrete figures in the file.

The threshold for a referral is low. The claimant does not have to prove that damage was suffered; it is enough that the possibility of damage is plausible. Future losses or the need for further investigation are typical reasons for a referral.

The procedure is meant for statutory obligations to pay damages, such as those arising from breach of contract or tort. In its ruling of 8 January 2021 (ECLI:NL:HR:2021:38) the Supreme Court held that it does not apply to a primary contractual obligation to pay, with a limited exception for a guarantor’s liability under Article 7:854 of the Dutch Civil Code (BW).

Why split liability and damages?

Splitting saves costs: the parties first settle whether there is liability at all, before spending money on substantiating the full damage. If the court rejects liability, that discussion is avoided altogether.

The court fee (griffierecht) in the main proceedings is also lower, because a claim for damages to be assessed is treated as a claim of indeterminate value rather than a specific large amount. Once liability is established, the parties can still settle the amount out of court.

Unaanzaje taratibu za tathmini ya uharibifu?

A bailiff serves the damages statement on the other party, under Article 613 Rv, together with a summons to appear on a set roll date. The competent court is the court that decided the main case at first instance.

The statement must itemise each head of damage and the amount, supported by documents, so that the other party can respond. Before starting, the claimant should show it tried to agree the damage with the other party; otherwise it risks an order to pay the costs.

The law sets no fixed deadline for starting, but unreasonable delay can lead to loss of the right (rechtsverwerking). Under Article 615 Rv, heads of damage that were not raised in the main proceedings can still be claimed, and several assessment procedures can follow one another.

Nini kitatokea baada ya taarifa ya fidia kutolewa?

The case continues like an ordinary civil claim: the other party files a written defence, followed by a hearing. The court can order evidence or an expert report, and a court fee is charged again at this stage.

The binding effect of the main judgment matters here. In its ruling of 16 February 2024 (ECLI:NL:HR:2024:249) the Supreme Court considered whether the main judgment had already decided the causal link, which would bind the court in the assessment proceedings. Defences tied to specific heads of damage, such as contributory fault, can still be raised.

The final judgment is an enforceable title. If the other party does not pay, the claimant can have a bailiff enforce it directly.

Unahitaji wakili?

Yes, if the main case was before the district court (rechtbank), where representation by a lawyer (advocaat) is mandatory. If the main case was before the subdistrict court (kantonrechter), which hears claims up to €25,000 and employment, rental and consumer cases, you may act without a lawyer.

If the other party does not appear, the court can give a default judgment. That does not mean every head of damage will be awarded; the court still checks whether the claim has a legal basis.

Unapaswa kuangalia nini kama mdai?

• Does the main judgment refer the parties to damages assessment proceedings, and which issues did it already decide?
• Have you tried to agree the amount with the other party before serving the statement?
• Is every head of damage itemised and backed by invoices, figures or an expert report?
• Have you included all heads of damage, including future losses and statutory interest?
• Is the statement served on the correct party and summoned before the correct court?

What should you check as the liable party?

• Which defences did the main judgment leave open, such as causation per head of damage or contributory fault?
• Is each head of damage substantiated with documents, or merely asserted?
• Did the claimant limit its loss as far as could reasonably be expected?
• Has the claimant waited so long that rechtsverwerking may apply?
• Is a settlement offer now cheaper than a second procedure with an expert report?

What can we do for you with damages assessment proceedings?

We act for claimants and liable parties as part of our wakili wa kampuni mazoezi.

• We analyse the main judgment to establish which issues are already decided.
• We draft the itemised damages statement and arrange service by a bailiff.
• We prepare the defence against a damages statement, head by head.
• We instruct and brief experts on the calculation of the loss.
• We negotiate a settlement on the amount before or during the proceedings.

Muhtasari

• Damages assessment proceedings fix the amount of compensation after liability has been established in the main proceedings.
• Under Article 612 Rv the court must assess the damage itself where possible; a referral requires only that the possibility of damage is plausible.
• The proceedings start with service of an itemised damages statement by a bailiff (Article 613 Rv), before the court of first instance.
• New heads of damage can still be claimed (Article 615 Rv), but issues decided in the main judgment cannot be reopened.
• The final judgment is directly enforceable.

Maswali yanayoulizwa mara kwa mara