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When a debtor continues to refuse to pay after repeated demands, the bailiff is the designated party to recover the debt. However, we observe that entrepreneurs often muddle through for too long with their own demand letters, or conversely, engage a bailiff too quickly without the basics being in order. In both cases, this costs an unnecessary amount of money. This article outlines what a bailiff can and cannot do, what the process entails in practice, and when taking this step is worthwhile.
What a bailiff does and what not
The court bailiff is a public official with a statutory monopoly on the performance of certain official acts. His powers are laid down in the Court Bailiffs Act and the Code of Civil Procedure. His core duties include serving summonses, serving judgments, levying provisional and executory attachments, and carrying out evictions.
In addition to official duties, a bailiff can also carry out amicable collection. This involves the same activities as a collection agency: demand letters, telephone contact, and arranging payment plans. What many entrepreneurs do not realize is that the official authority of a bailiff's writ often makes a greater impression on debtors than a commercial collection letter, without necessarily being more expensive. A first bailiff's demand typically costs a few tens of euros and can be initiated without legal proceedings being pending.
When is taking the step to involve a bailiff advisable?
The role of a bailiff depends on the stage the claim is in and the possibilities for recovery from the debtor. In the case of an undisputed claim that has remained unpaid after multiple reminders, legal proceedings by summons are usually the logical next step. The sub-district court has jurisdiction over claims of twenty-five thousand euros; the district court rules on matters exceeding that amount.
Before resorting to court proceedings, it is advisable to investigate the possibilities for recovery. In practice, a judgment against a dormant BV yields no results. A credit report or a recent extract from the Commercial Register provides an initial indication. In case of doubt, it may be useful to place a provisional attachment on the debtor's bank accounts, inventory, or claims against third parties beforehand. This requires permission from the preliminary relief judge and, upon approval in the main proceedings, the filing of a claim in the main proceedings within fourteen days (Article 700, paragraph 3 of the Dutch Code of Civil Procedure).
In the case of a disputed claim, a judicial ruling is inevitable. Extrajudicial collection costs pursuant to Article 6:96 of the Dutch Civil Code and the Collection Costs Act can only be claimed once the formal requirements have been met, including, for consumers, the so-called fourteen-day letter.
How much does a bailiff cost and who ultimately pays for it?
Extrajudicial activities of the bailiff are freely priced and generally depend on the amount of the claim. Official duties such as service and seizure are statutoryly tariffed in the Decree on Tariffs for Official Acts of Court Bailiffs.
In legal proceedings, costs are in principle awarded to the losing party based on the liquidation tariff. However, that tariff rarely covers the actual legal and bailiff costs. Furthermore, for consumers, extrajudicial costs are capped via the WIK scale. For B2B claims, you may stipulate higher collection costs in your general terms and conditions, provided they are reasonable.
It is also important to note that the issuance of a judgment does not yet result in money being deposited into the account. The enforcement phase, involving service, attachment of assets, and potential public auction, entails its own costs which are ultimately recovered from the debtor, but are advanced by you.
Follow-up action
Are you unsure whether it makes sense to engage a bailiff, or is an ongoing collection process stalled? Our lawyers assess the claim, the possibilities for recovery, and the most efficient course of action. In many cases, a targeted formal demand by a lawyer is cheaper and more effective than proceeding directly to the judicial phase. Contact us for a brief analysis.
