27 June 2022

Dutch Supreme Court: courts of appeal free to set and enforce page limits

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In 2021, the four courts of appeal in the Netherlands set page limits for civil matter legal briefs - 25 pages for statements of appeal and defence, and 15 pages for other briefs. In complex and high-stake cases, parties can ask for more pages. Following a legal challenge by a group of lawyers, the matter was referred to the Supreme Court for a preliminary ruling.

The Supreme Court has now confirmed that the courts of appeal were authorised to set page limits and that they can refuse briefs that exceed those limits. However, the Supreme Court gave instructions to safeguard parties' right to be heard and to have judicial access. In addition, it ruled that a court's decision to refuse a brief or a page-limit extension is subject to appeal. As the page limits will force parties to be concise on appeal, careful attention will need to be paid to the strategy in first instance. The courts of appeal were the first Dutch courts to set page limits; other Dutch courts are sure to follow.

Introduction of page limits

Although courts throughout the world enforce page limits - including the Court of Justice of the European Union - Dutch courts have historically never used them. This changed in April 2021, when the courts of appeal in the Netherlands introduced page limits in civil matters to reduce the workload for the court and the parties. The procedural rules set by the courts of appeal provide that briefs exceeding the limit will be refused, though a two-week grace period will be granted to submit an amended brief which complies with the limit.

The page limits have been subject to controversy since being announced, leading to a group of lawyers fighting these limits in summary proceedings against the Dutch State. In invoking the right to a fair trial, the group challenged the authority of the courts of appeal to set page limits. The preliminary relief judge referred the case to the Supreme Court for a preliminary ruling. On 3 June 2022, the Supreme Court issued its ruling.

What the Supreme Court decided

According to the Supreme Court, judges are authorised to set page limits based on their general statutory power to take all decisions necessary for a proper conduct of the proceedings, and on their statutory obligation to prevent undue delay of the proceedings. They may also set these limits in their court's procedural rules.

The Supreme Court found, contrary to the Advocate General, that there is sufficient statutory basis for judges to refuse briefs that exceed the page limit.

However, the Supreme Court stressed that courts must assess - on a case-by-case basis - if denying a page limit extension or rejecting a brief exceeding the page limits would result in a violation of the right to judicial access or the right to be heard. While these rights are not absolute and limitations are permitted, the very essence of these rights should not be impaired.

The Supreme Court also noted that, given the far-reaching consequences that the denying of a brief may have, the parties must have sufficient opportunity to prevent those consequences. For example, by giving parties the possibility to request a page-limit extension and by granting a two-week grace period to submit an amended brief, as the courts of appeal did. However, according to the Supreme Court, a strict application of this grace period may not always be appropriate.

Finally, the decision by a court of appeal to grant or deny a request by one of the parties to extend the page limit must be properly explained. The Supreme Court decided that such decisions, as well as decisions to refuse a brief due for not observing the page limit, are subject to appeal to the Supreme Court. These additional rules provide the parties with sufficient legal protection.

What is next?

The page limits will change the way some cases are litigated in the Dutch courts, including on appeal and in the first instance. Parties will need to be concise on appeal, though courts of appeal are expected to be more lenient in complex and high-stake cases. As parties' room for putting forward their arguments will be limited on appeal, they will have to position themselves as best they can in first instance – and ahead of a potential appeal.

The use and legitimacy of page limits continues to be the subject of much debate between the judiciary, the bar, and academics throughout the Netherlands. Now that the courts of appeal have successful introduced page limits, other Dutch courts are expected to follow.