In the event of imminent harm to creditors or the risk of important business assets disappearing, precautionary measures can make the difference between success and disappointment.
In the event of imminent harm to creditors or the risk of important business assets disappearing, precautionary measures can make the difference between success and disappointment.
Prejudgment attachment can prevent assets from moving beyond a creditor’s reach during a dispute. Subject to conditions, it may be levied on bank balances, receivables from third parties, shares or real estate, for example. Attachment is not a final ruling that the claim exists and does not yet entitle the creditor to payment.
Attachment does not automatically create priority over other creditors either. Security rights, earlier rights and possible bankruptcy may determine the eventual proceeds. We therefore assess not only whether attachment is available, but also whether it is likely to preserve meaningful recovery.
Prejudgment attachment generally requires permission from the interim relief judge. The application must sufficiently substantiate the claim, proposed attachment and relevant circumstances. Known defences and facts adverse to the assessment must also be presented honestly. Showing only the favourable side may later count against the attaching creditor.
Many forms of attachment are considered without hearing the opposing party beforehand, but that is not a universal rule for every attachment. We check the requirements for the chosen form and the applicable procedural rules. The bailiff effects an authorised attachment within the permission’s limits.
If substantive proceedings have not yet begun, the court usually sets a deadline for bringing the main claim. Failure to comply may cause the attachment to lapse. Arbitration or another route also requires assessment against the applicable rules; a formal demand is not automatically sufficient.
The attachment strategy must therefore align with the substantive proceedings from the outset. We prepare the claim and evidential position alongside each other. An urgent measure without a sustainable follow-up may cause unnecessary costs and liability risks.
Attachment to secure recovery of a monetary claim differs from attachment securing delivery of a specific asset. Evidence preservation seizure serves another purpose: preserving material that may be needed as evidence. It does not automatically confer a right to inspect the material and is not a general instrument for exerting payment pressure.
Attachment of bank accounts may substantially affect liquidity. Attachment of other assets may have a different impact. We therefore seek a measure that fits the interest being protected, taking account of statutory limits and third-party interests.
A party facing attachment may seek its release in certain circumstances, often through interim relief proceedings. Statutory grounds include the asserted right being unfounded, the attachment being unnecessary and sufficient security being provided for a monetary claim. The assessment involves the documents and a balancing of interests.
A bank guarantee or other security may allow business activities to continue while the dispute is decided. Its terms must suit the claim and the outcome of proceedings. Not every offered guarantee is automatically sufficient, and not every objection justifies maintaining a highly intrusive attachment.
If the claim for which attachment was levied ultimately proves unfounded, liability for attachment losses may arise. Partial success or disproportionate execution may also raise separate questions. We discuss this risk beforehand and continue assessing whether maintaining attachment is necessary during the dispute.
Loss may extend beyond bailiff’s fees, for example where business operations were demonstrably affected. Causation, amount and mitigation must nevertheless be examined. See also our assistance with liability issues.
Dutch permission to attach assets does not automatically operate as an instruction to a foreign bailiff. Attachment abroad is governed by local rules and, where applicable, European instruments. A European Account Preservation Order has its own scope and conditions.
We connect attachment options with international disputes and engage local assistance where needed. Once an enforceable instrument has been obtained, it must be assessed how the attachment can lead to enforcement, which formalities apply and which rights of other creditors take priority.
No. Prejudgment attachment generally preserves the possibility of recovery. Actual realisation requires an appropriate enforceable instrument and compliance with enforcement rules.
No. The substantive assessment takes place in the main proceedings. Attachment may, however, immediately affect your business. Have both the claim and options for release or substitute security assessed.
Contact us if recovery prospects are threatened or your business faces attachment. We assess the available measures and their consequences.
