Ruling — appeal inadmissible, never decided on the merits

AMSTERDAM COURT OF APPEAL

Civil and Tax Law Division

case number: 200.360.223/01

District Court case and petition number: C/17/199273 / HA RK 25-17

Decision of the three-judge civil chamber of 9 April 2026

in the matter of

1. [appellant 1], residing in [place 1],

2. [appellant 2], residing in [place 2],

3. [appellant 3], residing in [place 1],

appellants, lawyer: Mr P.W.H. Stassen of Eindhoven,

versus

1. [respondent 1], residing in [place 3],

2. [respondent 2], residing in [place 4], municipality of [place 5],

3. [respondent 3], residing in [place 6] (Belgium),

4. [respondent 4], residing in [place 7],

5. [respondent 5], residing in [place 8],

6. [respondent 6], residing in [place 9] (Malaysia),

7. [respondent 7], residing in [place 10],

8. [respondent 8], residing in [place 11], municipality of [place 12],

9. [respondent 9], residing at a confidential address,

10. [respondent 10], residing in [place 13],

11. THE STATE OF THE NETHERLANDS, having its seat in The Hague,

12. [respondent 11], residing in [place 14] (United States of America),

13. [respondent 12], residing in [place 15],

14. [respondent 13], residing in [place 16] (United States of America),

15. [respondent 14], electing domicile in [place 17],

16. [respondent 15], residing in [place 18], municipality of [place 1],

17. [respondent 16], residing in [place 19],

respondents,

lawyer for respondents sub 1 to 11 inclusive and 16: Mr R.W. Veldhuis of The Hague,

lawyer for respondents sub 12: Mr D.C. Roessingh of Amsterdam,

lawyer for respondents sub 13 and 17: Mr P.A. Lichtendahl of Amsterdam,

lawyer for respondent sub 14: Mr W. Heemskerk of The Hague,

lawyer for respondent sub 15: Mr A.H. Ekker of Amsterdam.

The appellants will hereinafter be referred to as [appellant 1], [appellant 2] and [appellant 3] (and jointly: [appellants]).

The respondents will hereinafter be referred to as [respondent 1], [respondent 2], [respondent 3], [respondent 4], [respondent 5], [respondent 6], [respondent 7], [respondent 8], [respondent 9], [respondent 10], [respondent 9], the State, [respondent 11], [respondent 12], [respondent 13], [respondent 14], [respondent 15] and [respondent 16] (and jointly: [respondents]).

Respondents sub 1 to 11 inclusive and 16 will hereinafter also be referred to as: the State et al.

1. The case in brief

[appellants] have lodged an appeal against a decision of the District Court refusing their request to hear experts put forward by them by way of a provisional taking of evidence. They did so despite the prohibition on legal remedies in Article 200 DCCP. Since [appellants] did not ask the District Court for leave to allow an appeal, [appellants] can only be admitted to the appeal if there is a ground for breaching that prohibition. There is no such ground, so [appellants] are declared inadmissible in their appeal.

2. The proceedings on appeal

By notice of appeal, with five exhibits, received at the registry of the Arnhem-Leeuwarden Court of Appeal on 15 September 2025, [appellants] appealed against the decision given by the District Court of the Northern Netherlands on 20 August 2025 under the case and petition number stated above (hereinafter: the contested decision).

By decision of 9 October 2025, the Arnhem-Leeuwarden Court of Appeal referred the case to this Court of Appeal for further handling.

Upon enquiry, [appellants] informed the Court of Appeal by message of 1 December 2025 that no leave to appeal had been requested from the District Court.

By message of 3 December 2025, the Court of Appeal informed the parties that it must first decide on the admissibility of [appellants] and on the grounds for breaching the prohibition invoked by them.

On 14 January 2026, the statements of defence (concerning admissibility and grounds for breaching the prohibition) of [respondent 11], [respondent 12] and [respondent 16], and [respondent 14] were received at the registry of the Court of Appeal. On 16 January 2026, the statement of defence (concerning admissibility and grounds for breaching the prohibition) of the State et al. was received at the registry of the Court of Appeal.

The parties had their positions on admissibility and grounds for breaching the prohibition explained at the oral hearing of 9 March 2026, [appellants] by Mr Stassen, referred to above, and the State et al. by Mr M.E.A. Möhring, lawyer in The Hague, both on the basis of speaking notes submitted. The lawyers of the other respondents stated that they endorse the speaking notes of Mr Möhring.

The decision has been set for today.

3. First instance

3.1. In first instance, [appellants] requested – in summary – that the court order by decision that an examination be held at which the experts named by [appellants] could be questioned on the questions formulated in the petition.

3.2. The District Court refused the request of [appellants] and ordered them to pay the costs of the proceedings on the part of [respondents].

4. Assessment

4.1. [appellants] have moved that the Court of Appeal set aside the contested decision and – provisionally enforceable – grant their request in first instance after all, with an order that [respondents] pay the costs of the proceedings in both instances, including post-judgment costs and interest. To that end [appellants] have put forward six grounds of appeal. In addition, [appellants] have requested, by way of interim relief, that the experts put forward be permitted to give their opinion in this case before the Court of Appeal.

4.2. All respondents have moved that [appellants] be declared inadmissible in the appeal, or otherwise that the request be refused. With the exception of [respondent 13], the respondents have requested that [appellants] be ordered – provisionally enforceable – (jointly and severally) to pay the costs of the proceedings on appeal.

4.3. The request of [appellants] to hear experts is a request for a provisional taking of evidence as referred to in Articles 196 et seq. DCCP. Under Article 200(2) DCCP, no higher remedy is available against the decision on this request, unless the court determines otherwise. In their request, [appellants] did not ask the District Court to allow an appeal. Nor did they do so during the hearing of the request by the District Court, or after the decision. The District Court gave no judgment on the question whether an appeal should or should not be opened. Nor was the District Court obliged to answer that question of its own motion, and it did not have to give reasons why no exception to the prohibition on legal remedies was made.

4.4. Since the District Court did not determine that an appeal could be lodged against its decision, [appellants] are inadmissible in their appeal because of the prohibition on legal remedies in Article 200 DCCP. Only if there were a ground for breaching that prohibition could [appellants] be admitted to the appeal notwithstanding Article 200 DCCP. There is a ground for breaching the prohibition if the court has gone beyond the scope of the relevant rules, has wrongly failed to apply them, or, in hearing the case, has disregarded such a fundamental principle of law that the case cannot be said to have been heard fairly and impartially. The contentions put forward by [appellants] relate to this last ground. It has not been asserted, nor has it become apparent, that the District Court went beyond the scope of the rules or wrongly failed to apply them.

4.5. The position of [appellants] that the hearing before the District Court was not public and that the District Court violated Article 6 ECHR by closing the doors lacks a factual basis. After all, the District Court did not close the doors. The hearing took place in public; this is also evident from the audio recording of the hearing provided to the parties by the District Court. Nor does the District Court's decision – in line with the Judiciary's press guidelines as revised with effect from 1 June 2025 – to permit only accredited press to take photographs and make audio and video recordings mean that there was a violation of Article 6 ECHR. The hearing was also accessible to non-accredited journalists and, moreover, the District Court provided the parties with an anonymised audio recording of the hearing for the benefit of the non-accredited press. The right to a fair and public hearing was therefore at no point compromised. The fact that part of the public, which turned out in large numbers, had no access to the courtroom, apparently because it was full, does not alter this. The course of events at the hearing therefore does not constitute a ground for breaching the prohibition.

4.6. [appellants] have further argued that the District Court violated the principle that both sides must be heard by deciding on the request of non-accredited press to film the hearing before their lawyer had been able to respond to it. [appellants] lose sight here of the fact that the principle that both sides must be heard (within the meaning of Article 19 DCCP and Article 6 ECHR) relates to the (substantive) debate in which they are involved. The request of non-accredited journalists to film falls outside that and concerns a decision regarding the orderly conduct of the hearing. The (presiding judge of the) District Court has the power to take such procedural decisions, regardless of the parties' views. (The presiding judge of) the District Court could therefore, in line with the Judiciary's revised press guidelines, prohibit non-accredited press from taking photographs or making audio or video recordings. This has nothing to do with censorship, because the hearing was public and the journalists concerned could be present and, if they wished, report on the hearing. Nor has there been any violation of the principle that both sides must be heard, so that no ground for breaching the prohibition on legal remedies in Article 200 DCCP can be found here either.

4.7. [appellants] have not invoked any other ground for breaching the prohibition. They have, however, set out at length that the prohibition on legal remedies should be set aside in this case because of the special importance of their claim and the context of the case. The importance or the context of a case cannot, however, in itself constitute a ground for breaching the prohibition, nor can it lower the threshold for doing so. The Supreme Court's case law on breaching the prohibition limits the grounds for doing so to fundamental violations of the law, of which there is no question in this case. An alleged great interest, whether social, financial or otherwise, does not mean that the prohibition on legal remedies must nevertheless be breached. Nor does the alleged violation of Article 21 DCCP, whatever may be said of it further, suffice to breach the prohibition on legal remedies. That prohibition rests on a balancing of interests by the legislature; the legislature has also provided for an exception to that prohibition by offering the possibility of requesting leave to lodge an appeal. The interests asserted by [appellants] and/or the violation of Article 21 DCCP could have formed the basis for such a request, but not for breaching the prohibition.

4.8. Although it cannot lead to a breach of the prohibition on legal remedies either, the Court of Appeal further observes that the position of [appellants] expressed in the general ground of appeal, that the District Court wrongly designated the experts proposed by them as party experts, is incorrect. Quite apart from the fact that [appellants] themselves – rightly – consistently designate the experts as party experts in the initiating petition of 7 March 2025, these are also experts put forward by [appellants]. The designation ‘party experts’ merely clarifies the difference from court experts appointed by the District Court or the Court of Appeal. The term ‘party experts’ says nothing about partiality or independence. After all, every expert may be expected to perform his/her task impartially and independently. The objection of [appellants] to this designation by the District Court is therefore unfounded and does not lead to a different judgment on the admissibility of [appellants] in their appeal.

4.9. Since there is no ground for breaching the prohibition on legal remedies in Article 200 DCCP, [appellants] are inadmissible in their appeal. The other grounds of appeal and the request for interim relief therefore need not be discussed further. At the hearing, [appellants] raised the fact that, despite the summons to the hearing, none of the respondents appeared in person. The Court of Appeal sees no reason to attach consequences to this. Parties are free to choose their own conduct of the proceedings. After the summons to the hearing, the Court of Appeal asked the lawyers which of the parties would wish to be present at the hearing (whether or not via video link). Even if earlier communications to the parties had created a different impression, the parties were thereby given the opportunity, as is customary in petition proceedings such as these, to appear only through their lawyer.

4.10. [appellants] have been unsuccessful on appeal and will therefore be ordered to pay the costs of the proceedings on appeal, insofar as claimed by [respondents]. The Court of Appeal assesses the lawyers' fees at € 2,580.- (2 points at € 1,290.- (tariff II)).

5. Decision

The Court of Appeal:

5.1. declares [appellants] inadmissible in their appeal;

5.2. orders [appellants] to pay the costs of the proceedings on appeal, assessed to date on the part of:

the State et al. at € 373.- in court registry fees, € 2,580.- in lawyer's fees and € 178.00 in post-judgment fees, to be increased by € 92.00 in post-judgment fees and the costs of the writ of service in the event that this decision is served, and to be increased by the statutory interest if the order for costs has not been complied with within fourteen days of this decision or of the post-judgment costs becoming due;

[respondent 12] and [respondent 16] at € 373.- in court registry fees, € 2,580.- in lawyer's fees and € 178.00 in post-judgment fees, to be increased by € 92.00 in post-judgment fees and the costs of the writ of service in the event that this decision is served, and to be increased by the statutory interest if the order for costs has not been complied with within fourteen days of this decision or of the post-judgment costs becoming due;

[respondent 14] at € 373.- in court registry fees and € 2,580.- in lawyer's fees, to be increased by the statutory interest if not paid within fourteen days of this decision;

[respondent 11] at € 373.- in court registry fees and € 2,580.- in lawyer's fees, to be increased by the statutory interest if not paid within fourteen days of this decision

5.3. declares the orders under 5.2 provisionally enforceable.

This decision was given by Mr M.C. Bosch, Mr D. Kingma and Mr P.F.G.T. Hofmeijer-Rutten and pronounced in public by the presiding judge on 9 April 2026.