Onder 2.1 Gerechtshof Den Haag 18 december 2015

In this total of ten notices of appeal they were summoned to appear on 21 May 2013. On that day Shell’s attorney presented himself as counsel in cases a, b, d, and e, but not in case c, because according to Shell no notice of appeal had been received in that case. Case c had, however, been entered on the cause list on the basis of an original of the notice of appeal, drawn up by the bailiff and made available to Milieudefensie et al. after he had served the ten notices of appeal, for which reason RDS et al. were declared to be in default in case c. After this leave to proceed in default of appearance Milieudefensie et al. served a writ on RDS et al. to appear in court on 31 May 2013, appending (a copy of) the original writ made available to Milieudefensie et al. dated 1 May 2013 and maintaining the summons explicitly. RDS et al. then did appear, but have subsequently primarily adopted the position that the notice of appeal in case c was not served in due time, and that therefore the appeal in that case has not been instituted (art. 343 CCP). It points out that the Bailiffs’ Division in the District Court at Amsterdam has taken disciplinary action against the bailiff, on the ground that: ‘Delivery of the original writ by a bailiff to his client, which states that a copy thereof has been presented to the person referred to in it, whereas it is not established that this copy has in fact been delivered to this person, is a serious disciplinary offence. In legal transactions one must be able to rely on that what a bailiff states in his writ within the limits of the powers conferred on him, is true without a shadow of a doubt. This not being the case, the court will decide as follows in the matter of [the bailiff, addition Court of Appeal].’ RDS et al. also point out that the statutory deadline for appeal is a matter of public order.

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