Cassation

Judicial decisions rendered in the highest factual instance (usually by the court of appeal) can be appealed in cassation to the Supreme Court. Cassation proceedings require a particular specialization. Only attorneys who have the endorsement “Attorney at the Supreme Court” and have passed a specific exam for this purpose are authorized to litigate at the Supreme Court.

Boontje Advocaten & Mediators offers this specialism. We act in Supreme Court proceedings in virtually all civil cases, with a particular focus on employment law, corporate law and contract law. This means you can be assured that we can assist you from the beginning to the end in legal proceedings. In many cases, proceedings in factual instances will not have been conducted by Boontje Lawyers & Mediators. In that case we can also advise you on the chances of success of the proceedings at the Supreme Court. If our advice is positive, we are also prepared to litigate the case before the Supreme Court. All this is done in close cooperation with the attorney who handled the case in the factual instances.

The proceedings before the Supreme Court
Proceedings before the Supreme Court differ from other judicial proceedings. This is because the Supreme Court judges only whether the contested judgment correctly applied the law or whether it is sufficiently motivated. Unlike, for example, the court of appeals, the Supreme Court no longer considers the facts of the case in cassation proceedings. Moreover, the decisions of the Supreme Court – even more so than lower courts – make an important contribution to legal uniformity and legal development. The extraordinary nature of Supreme Court proceedings requires in-depth knowledge of substantive law and procedural law.

If the proceedings before the Supreme Court are successful, the contested judgment is set aside and, in most cases, the case is referred to another factual court. There the proceedings are continued by the attorney who also handled the case in previous factual instances. If desired, we can continue to advise in the background in consultation with this attorney.

It may also happen that the opposing party lodges an appeal before the Supreme Court. In that case we can advise on the necessity and likelihood of success of a defense. We can also advise on the possibility of lodging an (incidental) cassation appeal.

Cassation advice and quick-scan
Proceedings before the Supreme Court are always preceded by an advice, in which we assess whether an appeal or defense in cassation proceedings has a chance of success. If desired, we provide this advice on the basis of a sharp fixed fee agreement. Prior to a more extensive advice, we can also perform a quick-scan at a reduced rate. In many cases it is possible to assess, on the basis of a brief initial estimation, whether there are any indications for a successful appeal before the Supreme Court.

Second opinion
If a previous advice has been negative, there may be a need to have another attorney take another look at the case. In that case, we can swiftly provide a second opinion. If the second opinion turns out to be positive, we can also litigate the case before the Supreme Court.

Watching on appeal
It is possible to start anticipating possible Supreme Court proceedings during the appeal proceedings.  A litigating party can still largely revise his trial strategy on appeal. For example, he can still state new facts, change his claim and put forward new legal bases for his claim or defense. These possibilities do not exist in cassation proceedings. As a result, litigation strategy in appeal proceedings has a major impact on the chances of succes before the Supreme Court. It may therefore be advisable to involve a Supreme Court attorney at the very outset of appeal proceedings.  In close consultation with the attorney acting in the appeal proceedings, we can build a strategy from the ground up.

Preliminary proceedings
In some cases, lower courts may, at the request of the parties or otherwise, refer questions to the Supreme Court for a preliminary ruling. This possibility exists if the answer to a question of law is not only necessary for the case in question, but may also be of importance in many other – similar – cases. The parties can comment on the questions referred for a preliminary ruling through a Supreme Court attorney. In close cooperation with the attorney handling the case in factual instances, we can advise on the wording of the questions and act as counsel in the preliminary proceedings.

Jump Cassation
Sometimes it pays off to skip the appeal proceedings and immediately file an appeal before the Supreme Court. This is called a leapfrog appeal. A leapfrog is only possible if both parties agree. Parties may consider this especially if the case hinges on answering a particular question of law. The parties may choose to first revisit that question in ordinary appeal proceedings, or they may choose to take the question directly to the highest court. In consultation with the attorney who handled the case at first instance, we can advise on the possibility of a leapfrog appeal and possibly litigating before the Supreme Court.

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