Prima facie review

What is a prima facie review in an attachment procedure? When a prejudgment attachment is made, assets are ‘frozen’ until the court has ruled on the collection of the claim. If the debt collection is successful, the creditor is given certainty that there are still possibilities for recovery from the debtor if an award follows.

Permission to attach

Permission to attach, which is required pursuant to article 700 paragraph in the Code of Civil Procedure, is requested by submitting a petition. In this application, the creditor substantiates the grounds for the attachment. Compared to other jurisdictions, in the Netherlands it is relatively easy to grant permission to a creditor to issue a prejudgment attachment to the person or company on whom he or she believes to have a claim.

Prima facie review (or summary examination)

Case law and practice show that the judge does not conduct an extensive investigation into which party is right. The judge will only conduct a prima facie review into whether the claim in the petition is well-founded or not. The fact that a claim is contested does not have to be a reason for not granting the application for attachment. This question must then be answered in the main proceedings by the debt collection lawyer.

Prima facie review in a ruling of the Amsterdam Court of Appeal

The question can be asked how far this prima facie review extends. This question was addressed in a debt collection Netherlands case before the Amsterdam Court of Appeal on 14 April 2021 (ECLI:NL:GHAMS:2021:1035). With the application for leave to appeal, the applicant also submitted the summons and the statement of defence. The court ruled that the parties were diametrically opposed, whereupon the application for leave to appeal was rejected. The case did not consider it possible to determine who was right.

The applicant immediately appealed against this decision, believing that the wrong monthly standard had been applied. The yardstick that should have been used is whether the applicant’s statements and substantiation showed that the claim was sound. It is explicitly not the intention that the court gives a preliminary opinion on the possible (un)well-foundedness of the claim. According to the Court of Appeal, with its decision the Court in preliminary relief proceedings exceeded the scope of the prima facie review and applied an incorrect standard with its substantive judgment. The Court of Appeal has, in my opinion correctly, set aside the contested decision and granted permission for a prejudgment attachment on appeal after all.