Prejudgment attachment, conservatoir beslag, freezes assets before judgment so that a claim does not become worthless while proceedings run their course. It is one of the most effective instruments in Dutch civil practice and one of the most distinctive: leave is applied for and granted without the debtor being heard, and the attachment is levied before the debtor knows an application has been made.
That is precisely its value. A debtor who learns of a claim only when his bank account is frozen has not had the opportunity to move the money first.
How leave is obtained
A lawyer applies to the provisional relief judge of the district court, setting out the claim, the grounds for it and the reason for the attachment. The application is dealt with on the papers, usually within a day or a few days, and the debtor is not heard.
Because the debtor cannot respond, the applicant carries a heavy duty of candour: all facts relevant to the decision must be disclosed, including those that count against the application, such as a defence the applicant knows the debtor will raise or an earlier attachment that failed. Suppressing such facts is a ground for lifting the attachment and can affect liability afterwards.
Leave is granted subject to a condition: the substantive claim must be brought within a period set in the order, commonly fourteen days. If it is not, the attachment lapses.
What can be attached
Almost anything of value: bank balances, immovable property, shares, vehicles, stock and equipment, and receivables owed to the debtor by third parties – the last of these, attachment in the hands of a third party, being the most effective in practice, because it can be levied on the debtor’s bank and on its own customers at the same time.
Attachment does not give the creditor possession or payment. It immobilises the asset: it may not be sold, transferred or paid away. Recovery follows only after a judgment has been obtained, at which point the prejudgment attachment converts into an executory one.
Certain assets are protected from attachment, and where a debtor is a natural person, a protected minimum of income and of the bank balance must be respected.
The risk for the applicant
This is the part that is regularly underestimated. If the claim is ultimately dismissed, the attachment turns out to have been wrongful, and the applicant is in principle liable for the damage it caused – irrespective of whether the application was made carefully or in good faith. For a business whose bank accounts were frozen for months, that damage can substantially exceed the claim itself.
Attachment is therefore not a routine pressure tactic. It is an instrument for cases where the claim is strong and there is a genuine risk of assets disappearing.
Lifting an attachment
A debtor can apply in summary proceedings to have the attachment lifted, and the court will do so where the claim is shown to be without merit, where the attachment is unnecessary or disproportionate, or where sufficient alternative security is offered. Offering a bank guarantee is frequently the fastest route, because it removes the risk that the attachment was designed to address and restores the debtor’s freedom of movement immediately.
Frequently asked questions
How quickly can an attachment be levied?
Leave is often granted within a day, and the bailiff can levy the same day. In urgent cases the whole exercise takes twenty-four to forty-eight hours.
Does the debtor find out in advance?
No. The application is dealt with without the debtor being heard, which is what makes the instrument effective.
Do I get paid from the attached assets?
Not until you have a judgment. Prejudgment attachment secures; it does not recover.
Advice
We assess whether an attachment is worth the risk, prepare and file the application, arrange the levy with a bailiff, and act for debtors seeking to have an attachment lifted. Speed matters on both sides. Please contact Law & More.
