Written by Yord Koudstaal
Published on 13 July 2026
Abuse of procedural law
In civil proceedings, the losing party is generally ordered to pay the costs of the proceedings. However, this costs order does not include all the actual legal costs incurred by the other party. This is because the court awards a lump sum amount that is (almost) always lower than the actual costs.
In certain (exceptional) cases, the court does not apply a lump sum amount, but awards the actual legal costs of the other party. This happens in particular if a party abuses procedural law. The Supreme Court has ruled that parties commit an abuse of procedural law if a claim is “based on facts and circumstances of which they knew or should have known the inaccuracy or on assertions of which they should have understood in advance that they had no chance of success” (ECLI:NL:HR:2007:BA3516). Incidentally, not only a claim, but also a defence can constitute an abuse of procedural law. The same criteria apply here (ECLI:NL:PHR:2021:979).
An appeal on abuse of procedural law will not be granted quickly. This is because everyone must have access to the court. An example of proceedings in which full costs were awarded is the controversial case of the ‘lying judge’. The Court of Appeal of Den Bosch ordered the State to pay the other party’s actual lawyer’s fees. This ruling was later upheld by the Supreme Court.
