OBITER DICTUM OR NOT?

Litigating twice on the same matter is not allowed

The Netherlands Antilles Code of Civil Procedure prevents parties from litigating twice on the same legal issue. The principle that a final judgment of a competent court is conclusive upon the parties in any subsequent litigation involving the same cause of action is known as ‘res judicata’. A Dutch court case is described below illustrating this principle: Utrecht District Court of 19 March 2009 (NJF 2009/291).

In initial litigation, the claimant had sought payment of certain contractual penalties. The Court of Appeals rejected the claim on two separate grounds, the first being that under its interpretation of the agreement the claimant was not entitled to penalties for this particular shortcoming and secondly that the claimant had never issued a notice of default, thus the defendant had never been in default. The second argument was introduced with the word ‘moreover’ (in Dutch: bovendien).

The claimant then brought a new claim for different penalties, one which was not covered by the finding of the Court of Appeals in respect of the interpretation of the agreement, but by the finding that the defendant had never been in default.

The claimant argued that the second argument that the Court had used to reject the claim in the first litigation was not necessary, considering the first argument, and should therefore qualify as an obiter dictum, i.e. a finding that does not ‘carry’ the decision, and should therefore have no binding effect. The Utrecht District Court made short work of that argument: neither the use of the word ‘moreover’ nor the fact that there was another, preceding argument, for rejecting the claim, was any reason to qualify the second argument as an obiter dictum without binding effect. The claim in the second litigation was therefore rejected without any discussion on the merits of the case.

Karel Frielink
Attorney (Lawyer) / Partner

(27 March 2010)

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