DOMBO BEHEER B.V. v. THE NETHERLANDS JUDGMENT
6
II. PROCEEDINGS IN DOMESTIC COURTS
12. On 11 March 1983, pursuant to a court order which it had obtained
for that purpose, Dombo seized certain moneys which it still owed to the
Bank and summoned the Bank before the Arnhem Regional Court
(arrondissementsrechtbank), claiming financial compensation for the
damage caused by the Bank’s alleged failure to honour its commitments.
13. After extensive argument in writing - in which each party presented
written pleadings three times and produced a considerable number of
documents and Dombo offered to produce witnesses (in particular the
managing directors, Mr C.U. and Mrs van L., who had temporarily replaced
Mr van Reijendam, to prove that there had been negotiations at that time to
raise the credit limit from NLG 2,100,000 to NLG 2,600,000) - the Regional
Court delivered an interlocutory judgment on 2 February 1984 allowing
Dombo to call witnesses to prove, firstly, that the Bank had frozen Dombo’s
accounts on 28 January 1981 and, secondly, that the existing credit
arrangements had been extended by NLG 1,600,000 in December 1980. In
addition, it ordered the appearance in person (comparitie) before one of its
judges of representatives of Dombo and the Bank able to give information
and empowered to agree to a friendly settlement.
14. The Bank appealed against this interlocutory judgment to the
Arnhem Court of Appeal (gerechtshof), arguing that Dombo’s claim should
have been dismissed out of hand. According to the Bank, Dombo had
abandoned the original basis of its claim, and the basis which it had in the
meanwhile adopted for it obviously could not support it. Besides, Dombo
had no interest in the claim and the Regional Court’s requirement of
evidence was in any case too vague and one-sided.
After both parties had submitted a written statement and produced new
documents and, through their lawyers, pleaded their cases orally (Dombo
repeating its offer to provide evidence), the Court of Appeal, in a judgment
of 8 January 1985, refused to accept the Bank’s arguments and confirmed
the judgment of the Regional Court.
At the request of both parties, the Court of Appeal did not refer the case
back to the Regional Court but proceeded to deal with the case itself.
Accordingly, it ordered the hearing of witnesses to go ahead on 13 February
1985 before one of its own judges, Mr van E., but reserved the decision on
the date of the personal appearance of the parties’ representatives until the
witnesses had been heard.
15. Dombo called a number of witnesses, including Mr van Reijendam.
Producing the minutes of a shareholders’ meeting dated 29 June 1984, it
claimed that Mr van Reijendam had been dismissed as managing director
for reason of "lack of funds". It further produced a document from which it
appeared that Mr van Reijendam had been registered as an unemployed
person seeking employment on 27 November 1984 and an extract from the