Conservatory attachment in times of corona
When the precautionary attachment?
Suppose you have a claim against your other party. The other party does not pay and you want to start legal proceedings to collect the claim. You naturally want to be as much as possible sure that your other party can also pay the claim once the court has decided that your other party must pay. This can be done by imposing a protective attachment, for example on the bank account of your other party. Or on the car or the home. This is also known as a ‘preserving’ batter. What has been ‘touched’ by the precautionary attachment is then actually ‘frozen’ for you until the judge’s decision. This is different if your other party goes bankrupt in the meantime. If your counterparty goes bankrupt, all precautionary attachments will lapse.
Requirements for the imposition of protective attachment
A precautionary attachment may be made prior to starting a procedure. This attachment may not be laid by anyone just like that. To this end, a request must first be submitted to the preliminary relief judge. The petition needs to highlight a number of aspects. Not every aspect is discussed in this blog post. Depending on the precautionary attachment, other additional or non-additional requirements apply. You can find it in the so-called Beslagsyllabus, published by the Judiciary.
In any case, the claim itself must be described, the reason on which that claim is based, and where possible why your other party does not wish to pay the claim (the ‘defense’). It will also have to be explained why the imposition of a precautionary attachment is generally necessary. It should also be stated why a particular attachment is chosen and if and insofar as a less aggravating attachment is possible, this is not chosen. As a rule, seizure of a bank account of the other party is less onerous than seizure of the home.
Judge key
On the basis of the application, the preliminary relief judge examines whether a protective attachment may be made. In doing so, the judge assesses whether all formal requirements applicable to the form of attachment have been met and also assesses whether the alleged claim is “summary”. The interests of the requesting party and the other party will have to be taken into account. The above in itself is not a very strict test. Our or our practice shows that when the petition is properly put together and attention has been paid to all necessary aspects, a request is usually granted by the court. The bailiff can then be instructed to actually place the protective attachment.
After that, a procedure will have to be started in court within a certain time frame – normally 2 weeks.
Surprise effect
The imposition of precautionary attachment can have a surprising effect because the other party is not informed of a petition and the possible granting of the request. This while it can have (very) far-reaching consequences for your other party. Partly for this reason it is a good pressure medium. This does not mean that the other party cannot do anything anymore. If a prejudgment attachment has been levied and the other party does not agree with this, the opposing party can start summary proceedings (urgent proceedings) and demand that the protective attachment be lifted. The other party must then come up with sufficient arguments showing that the claimed claim is unsound or that the continuation of the attachment cannot be justified for other reasons.
Conservatory batter in corona time
In connection with the coronavirus outbreak, the working method of the Judiciary has been adapted. The Judiciary has a General case handling procedurelined up. It follows that it is still possible to submit petitions for the imposition of precautionary attachments. However, the Judiciary has indicated that the assessment of such petitions involves the current pandemic and the related (economic) situation, where appropriate, in the assessment. It is possible that further justification may be requested in this context, in addition to any other questions that arise as a result of the content of the petition. The other party therefore seems to be a little extra protected during these times. It is therefore obvious that when a petition for a pre-trial attachment is currently filed, the applicant will indicate why the interests of the applicant should override even now in this exceptional situation. Not much is known about how this works in practice. In any case, recently a request for the imposition of a precautionary attachment that I submitted on behalf of a client was ‘simply’ granted, without the corona crisis appearing to have been taken into account.
Finally
Preservative seizure is a good means of pressure to use. But every situation is different, especially now. Preservative attachment is not the best option in every situation. If the claim is (too) small, the costs of a request for the imposition of a precautionary attachment and the actual lodging thereof may exceed the claim. Even if it is expected that your other party will go bankrupt within a very short time, a precautionary attachment in the event of an actual bankruptcy will not (be able to) benefit you. It also applies that if and insofar as the judge in the proceedings decides that you have no claim, the protective attachment has been wrongly imposed. In that case, you must compensate the other party’s damage suffered as a result of the attachment. In other words:
Need advice?
Do you have any questions about the attachment of a protective attachment? Or do you need advice? Feel free to contact Lotte Oostdam , author of this blog, or one of our other lawyers .
This blog post was posted on May 6, 2020
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