Resignation

 

Resignation

























In this blog I discuss the legal term resignation in the context of civil procedural law. It discusses what resignation is, what the consequence is and what the conditions are.

What is resignation?

Resignation is when a party to the proceedings accepts the decision. It therefore refers to the waiver of the right to appeal against the court decision. [1] Or, as the Supreme Court put it in 1941, “that further struggle is given up” . [2]

Resignation can therefore be found in several places in the Code of Civil Procedure ('Rv'), including the following situations:

  1. it applies if an objection is lodged against a default judgment in (article 143 paragraph 4 DCCP):

“The convicted person who has resigned to the verdict can no longer object to it”;

2. it applies to appeal proceedings (Article 334 DCCP):

“Any party which has acquiesced in a judgment may no longer be admissible to appeal against it”;

3. and it applies in cassation (article 400 DCCP):

“The appeal in cassation is not open to him who has acquiesced in the judgment”.

The above examples relate to the summons procedure, but it also applies to the petition procedure. See article 358 paragraph 1 Rv for appeal and article 426 paragraph 4 in conjunction with article 400 Rv for cassation.

Consequences of resignation

It is clear from the above quotes that the party or litigant who has acquiesced in a judgment can no longer appeal against it. In other words, the verdict can no longer be challenged and is therefore fixed between the parties.

Once resigned, remains resigned

A resignation cannot be revoked. [3] It is therefore important to realize how resignation works and what you should and should not say and do.

Conditions of resignation

The resignation must be apparent from a statement or from the attitude of a party to the proceedings after the judgment has been rendered. Resignation is form-free, meaning there are no rules about how it happens. It can therefore be done in writing, orally, but also through smoke signals. Although in the latter two cases it can be difficult to prove it.

Addressed to the other party

The notification of resignation is a unilateral legal act that must be done to the other party. The other party therefore does not have to agree to it. If a party only declares against the registrar that it will not appeal, this does not count as resignation. [4]

Another practical example is the situation where a company spokesperson tells a news agency that the company will not appeal in cassation and that the company will abide by the court's decision. The news agency then puts this on its website and several media then take over. The company subsequently appeals in cassation and the other party takes the position that the judgment is based on the decision and that the company is inadmissible. The Supreme Court does not share this opinion, because the statement is addressed to the news agency and not to the other party. The fact that the other party has read the news item is irrelevant. [5]

unequivocal

A second requirement is that the consent decree is unambiguous and that there is therefore no doubt about the intention. This applies to both the communication and the attitude showing the resignation. Given the far-reaching consequences of the resignation – the ruling is final – this is a logical condition.

This means that the fact that a party voluntarily and without protest complies with a conviction is not based on that judgment. [6] After a verdict has been complied with, the lawyer of the convicted party wrote “This case is therefore dismissed” to the lawyer of one party to the lawyer of the other party is open to several interpretations. It could be about the appeal, but it could also be about the execution of the verdict. Therefore, there is no resignation here. [7]

There is, however, resignation if the lawyer of one party to the proceedings writes to the lawyer of the other party to the proceedings that his client waives an appeal or cassation.

Attitude

Not only can an unambiguous statement lead to resignation, but it can also follow from the conduct of a party. A very recent example of this is the situation in which the parties start to negotiate in the first instance after the verdict. The parties reach a settlement against the final and that settlement is complied with. The Arnhem-Leeuwarden Court of Appeal ruled in its judgment of 24 August 2021 :

“In this case, [appellant1] and [appellant2] – immediately after the Pension Fund requested them to pay the amount to which they were sentenced in the judgment of the subdistrict court – offered to pay a substantially lower amount, against final discharge. The Pension Fund has agreed to this proposal after careful consideration and [appellant1] and [appellant2] have implemented it after the Pension Fund's consent. In general, the wording 'final discharge' indicates that the parties want to put an end to their material dispute. The Pension Fund was allowed to interpret the proposal of [appellant1] and [appellant2] accordingly.”

The court adds that if the appellants did not want to acquiesce in the judgment, they should have made this known. By failing to do so, the impression has been created that, after acceptance and implementation of the proposal, they have acquiesced in the judgment. The Pension Fund was also justified in relying on this. [8]

Not officially

The court may not of itself (ex officio) rule that a party to the proceedings relies on a court decision. The other party will have to make an explicit appeal to this. [9]

When to invoke resignation?

The principle of due process means that an invocation of resignation must be made as soon as possible. This means that a party to the proceedings must do so in its first procedural document. [10]

[1] HR 10 June 2016, ECLI:NL:HR:2016:1138 .

[2] HR Apr 3, 1941, NJ 1941, 835.

[3] HR June 3, 1988, NJ 1988, 808, r.o. 3.

[4] HR Apr 3, 1941, NJ 1941, 835.

[5] HR 10 March 2017, ECLI:NL:HR:2017:412 , ground 3.4.

[6] HR Feb 8, 1991, NJ 1992, 98.

[7] HR Dec 6, 1985, NJ 1986, 196.

[8] Court Arnhem-Leeuwarden 24 August 2021, ECLI:NL:GHARL:2021:8167 .

[9] HR June 8, 2007, ECLI:NL:HR:2008:AZ6096 , ro 3.5.2.

[10] HR June 8, 2007, ECLI:NL:HR:2008:AZ6096 , ro 3.5.2.

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