In our (international) litigation practice, we provide clients with strategic advice on the course of civil proceedings and their alignment with other imminent or pending (complex) proceedings, potentially in foreign jurisdictions. In certain situations, we point out differences between Dutch (procedural) law and, for example, common law. On 1 January 2025, the Dutch Act Modernising Rules on Evidence entered into force and those differences have potentially decreased.
The rules on evidence set out when and how parties in civil proceedings can – or must – provide evidence for their alleged facts. The amendment to the rules on evidence aims to simplify and improve the possibilities for gathering evidence pre- and during civil proceedings. Where our rules on evidence traditionally differed from the Anglo-Saxon system, the new act brings changes reminiscent of Anglo-Saxon procedural rules, providing for a wider and more active exchange of potential evidence at an early stage.
Role of the judge
Dutch courts should traditionally be considered ‘passive’. Accordingly, they are to decide only on the points of dispute raised by the parties and generally take a more wait-and-see attitude. The new act confirms the current practice, in which judges seem to have become considerable more proactive. The court is given a more active role, and is specifically permitted to discuss with the parties ex officio the basis of their claim, application or defence (Section 24 Paragraph 2 Code of Civil Procedure). This authority aims to promote fact-finding in the proceedings. Accordingly, in line with recent developments, judges are now also specifically enabled to raise certain grounds and topics on their own initiative during the oral hearing.
Evidence prior to and during legal proceedings
Preliminary taking of evidence
Evidence can gathered prior to civil proceedings through preliminary evidentiary proceedings, such as the preliminary examination of witnesses, the preliminary examination of experts, and the preliminary site inspection. Under the old rules on evidence, such taking of evidence was requested separately from the court. Now, the various requests for taking of evidence can be efficiently merged into one request (Section 196 – 204 Code of Civil Procedure). This application should be made to the court at an early stage so that parties are encouraged to collect the available evidence prior to the proceedings as much as possible.
Evidence during proceedings
The taking of evidence during pending proceedings has also changed in some aspects. For instance, under the former Section 164 Paragraph 2 of the Code of Civil Procedure, a party’s testimony could not, as a starting point, provide evidence in its own favour. This rule has been dropped, leaving the assessment of such statements to the discretion of the court.
The act also introduces new rules on hearing witnesses and calling in experts. For example, Section 166 Paragraph 2 Code of Civil Procedure authorises the court (more clearly) to summon persons designated by it as witnesses for the oral hearing. Parties may also request the court, as in the case of witnesses, to allow them to bring their own expert(s) to the oral hearing, a witness examination or a judicial site viewing (Section 192 Code of Civil Procedure).
Right of access to data
Obtaining witness evidence can be a difficult and time-consuming process, while the reliability of witness evidence is not always certain in advance. Partly for this reason, the right of inspection of data is important, to make the available evidence clear more objectively.
With the recent legislative amendment, the rules on the right to inspect documents held by another party have been clarified. For example, the law now explicitly stipulates that a party can claim access to documents both against the opposing party and against third parties, without the intervention of the court. These parties are in principle obliged to cooperate, unless they can invoke a right to privilege or there are compelling reasons against access to data (Section 194 Code of Civil Procedure).
Furthermore, the broad wording of Section 194 of the Code of Civil Procedure codifies that the rules on the right of inspection also apply to modern forms of information, such as computer files.
Record of findings and seizure of evidence
With Section 207 of the Code of Civil Procedure, it is now explicitly possible to ask a bailiff to draw up a so-called ‘record of findings’. A record of findings contains an objective description of factual circumstances found by the bailiff and provides decisive evidence.
Finally, the possibility of levying a prejudgment seizure of evidence is now enshrined in law (Sections 205 and 206 Code of Civil Procedure). This measure enables a party to secure evidence. To subsequently gain access to the evidence seized, one still requires summary judge leave to be obtained through an (ex parte) application to that effect.
Take-away
The Act Modernising Rules on Evidence may substantially change the dynamics of civil litigation in certain respects, with a more active role for parties and wider access to potential evidence. This could make proceedings more efficient, but could also lead to new strategic options and a more complex debate on evidence.