What are damages assessment proceedings (schadestaatprocedure)?
Damages assessment proceedings (schadestaatprocedure) are a separate follow-up procedure used when a Dutch court has already established that a party is liable to pay compensation, but the exact amount cannot yet be determined. The court orders compensation “to be assessed in a separate procedure” (op te maken bij staat), and the parties then continue in a new but connected case whose sole purpose is to fix the individual heads of damage and the amount to be paid.
The damages assessment proceedings are not a fresh start. They build directly on the judgment in the main proceedings, in which liability has already been decided. Defences that were already dealt with in that judgment cannot be raised again.
When can the court refer a case to damages assessment proceedings?
As a general rule, a court that awards compensation must assess the amount of the damages itself in that same judgment, under article 612 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv). Only when assessment in the main proceedings is not yet possible — for example because future losses are involved or further investigation into the extent of the loss is needed — may the court depart from this rule and refer the parties to damages assessment proceedings instead.
According to settled case law of the Supreme Court, it is sufficient for a referral that the possibility of loss is plausible; it is not required that the claimant already makes it plausible that damage has actually been suffered (Hoge Raad 16 February 2024, ECLI:NL:HR:2024:249). The Supreme Court has also confirmed that damages assessment proceedings are intended primarily for statutory obligations to pay compensation, such as those arising from breach of contract or tort, and only exceptionally for a contractual compensation obligation that is closely connected to such a statutory duty (Hoge Raad 8 January 2021, ECLI:NL:HR:2021:38). Where the extent of the damage can already be sufficiently substantiated during the main proceedings, the court should in principle assess it there and then, rather than refer the case onward (Hoge Raad 27 October 2017, ECLI:NL:HR:2017:2774).
What are the advantages of splitting liability and damages?
Separating the question of liability from the question of damages offers several practical advantages. It allows the parties to first resolve whether there is liability at all, without immediately incurring the often considerable costs of substantiating the full extent of the damage.
If the court rejects liability, the parties will have avoided a costly and unnecessary discussion about the amount of compensation. Conversely, once liability has been established, the parties may still reach an out-of-court settlement on the amount, avoiding a further procedure on quantification altogether.
There is also a cost advantage for the claimant. When the main proceedings concern only the question of liability, the court registry fee (griffierecht) is calculated on the basis of a claim of indeterminate value, which is lower than the fee that would apply if a specific, substantial amount of damages were claimed immediately.
How do you start damages assessment proceedings?
Although damages assessment proceedings continue on from the main proceedings, they must be started as a separate, independent procedure. This is done by having a bailiff serve a damages statement (schadestaat) on the other party, under article 613 Rv. The statutory requirements that also apply to an ordinary writ of summons must be observed, including the roll date on which the case is listed at the competent court. The court competent to hear the damages assessment proceedings is, as a rule, the same court that ruled on the main proceedings at first instance.
The damages statement must set out a clear, itemised account of the amount of damages being claimed, broken down by head of damage and supported by documentary evidence, so that the other party can properly defend itself against it. It is not necessary to repeat the claim for compensation as such, since that has already been decided in the main proceedings; the court will independently assess the damages on the basis of the facts and evidence submitted. The statement as filed is not final: under article 615 Rv, it remains possible to introduce new heads of damage after the statement has been served, although the other party may object that this amounts to an impermissible increase of the claim.
What happens after the damages statement is served?
The further course of the damages assessment proceedings resembles an ordinary civil claim procedure. The other party responds in writing with a statement of defence, after which a hearing may follow before the court. The court can also give directions for the taking of evidence or order an expert report to assess the damages objectively. A court registry fee is charged again at this stage.
The judgment given in the damages assessment proceedings is an enforceable title in its own right. If the other party does not pay voluntarily, the claimant can proceed directly to enforcement on the basis of that judgment, which finally determines and settles the amount of compensation due.
Do you need a lawyer for damages assessment proceedings?
Damages assessment proceedings are conducted before the district court (rechtbank) as a civil claim procedure, in which the parties must be represented by a lawyer (advocaat), just as in the main proceedings. If the other party does not appear or does not respond, the court can enter a default judgment against it.
Because the law on damages assessment is a technical and often complex area — involving detailed rules on causation, mitigation and the burden of proof for each separate head of damage — it is advisable to involve a lawyer at an early stage, both when preparing a damages statement and when defending against one.
What does case law say about referral and assessment?
Dutch case law gives the court considerable discretion both when deciding whether to refer a case to damages assessment proceedings and when assessing the damages once there. The Supreme Court has held that a court is not always obliged to quantify the damages itself in the main proceedings, and that the assessment of damages depends in part on what the parties have put forward, including any contributory negligence of the injured party and other circumstances affecting the extent of the loss. Where damages cannot be calculated with precision, the court may estimate them on the basis of the concrete facts available in the file (Hoge Raad 10 October 2014, ECLI:NL:HR:2014:2930).
A judgment in the main proceedings can already contain an order against the liable party in principle, with the exact amount left to be determined at a later stage in the damages assessment proceedings. This structure also applies in cases involving a wrongfully levied conservatory attachment (conservatoir beslag): once it has been established that the attachment was unlawful, the party that suffered loss because of it can be referred to damages assessment proceedings to quantify that loss, rather than having to prove the full amount already in the main proceedings.
Frequently asked questions
Can I still change the amount I am claiming once the damages statement has been served?
Yes. Article 615 Rv allows new heads of damage to be introduced even after the damages statement has been served, although the other party can object that this amounts to an impermissible increase of the claim. It is therefore advisable to set out every relevant head of damage as completely as possible from the start.
How long do damages assessment proceedings usually take?
There is no fixed statutory term. The proceedings follow the ordinary timeline of a civil claim procedure, with a statement of defence, possibly a hearing, and sometimes an expert report, so the total duration depends on the complexity of the case and the court’s schedule.
Does winning the main proceedings guarantee compensation in the damages assessment proceedings?
No. Liability has already been established, but the court can still decide that little or no loss has actually been suffered, or that a particular head of damage is not eligible for compensation. The outcome therefore remains uncertain until the final judgment in the damages assessment proceedings.
Practical tips
- Seek legal advice at an early stage: the threshold for a referral to damages assessment proceedings is relatively low, and the procedure has its own separate rules.
- Specify each head of damage carefully and, where possible, gather supporting evidence before the damages statement is drawn up.
- Bear in mind that damages assessment proceedings can still end unfavourably — for example if the court finds that, despite liability, no loss, or less loss than claimed, has in fact been suffered.
- Align the strategy in the main proceedings with the later damages assessment proceedings from the outset, and explore settlement wherever possible to avoid a second, lengthy procedure.
In summary
- Damages assessment proceedings (schadestaatprocedure) determine the exact amount of compensation after liability has already been established in the main proceedings.
- A court can only refer a case to these proceedings if it cannot yet assess the damages itself (article 612 Rv); the possibility of loss must be plausible.
- The proceedings start with service of a specified damages statement on the other party (article 613 Rv) and follow the ordinary rules for a civil claim procedure.
- New heads of damage can still be added after the statement is served, but may be challenged as an impermissible increase of the claim.
- Legal representation is mandatory, and the resulting judgment is directly enforceable.
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