On 31 May 2018 Dutch Minister Dekker published a draft bill for consultation that primarily aims to modernise and simplify the law of evidence within Dutch civil procedure.
The draft bill draws heavily on a report dated 10 April 2017 from the expert group on the modernisation of law of evidence. The Dutch Bar Association has since published an advice paper on the report. The consultation period ended on 29 July 2018. Stibbe’s litigation team (Amsterdam) has prepared and submitted a response to the draft bill. This blog highlights some of the key changes proposed under the draft bill.
Although it is not certain at this stage whether these changes will enter into effect, they reflect interesting developments which would fundamentally change Dutch civil procedure.
Reasons for change
The Explanatory Memorandum to the draft bill notes that existing Dutch civil proceedings are too complex, take too much time and lack effectiveness.
According to the Minister, this is partly because parties often file various applications in order to obtain evidence while the proceedings on the merits are ongoing. This leads to increased costs and delay of the proceedings. Furthermore, different thresholds are applicable for awarding a particular application to obtain evidence. The Minister notes that this creates confusion for parties and prevents them from selecting the most effective application.
The proposals in the draft bill aim to improve the law of evidence and establish a form of dispute resolution that leads to more effective solutions and earlier settlement of disputes.
The draft bill proposes various key changes to Dutch civil procedure, which are highlighted below:
- Parties will be obliged to collect all relevant information before initiating civil proceedings. This includes requesting information from third parties and the opposing party. The obligation to collect evidence is limited to evidence which a party could reasonably foresee to be relevant for resolving the dispute and which a party can reasonably obtain. A party will not need to comply with a request for preliminary disclosure if there are compelling reasons for non-compliance or if the information is privileged. If a party fails to disclose information which this party could reasonably foresee to be relevant for resolving the dispute and which this party can reasonably obtain, the judge has discretion in deciding what steps should be taken as a consequence. For example, a judge may decide to deny the refusing party the possibility to submit additional evidence at a later stage or decide that the refusing party has failed to properly prove a particular statement.
- If, during the main proceedings, a party claims that certain information should not be disclosed, the judge presiding over the case may refer the decision on this issue to a different judge. Once a decision has been given, the case will be returned to the judge originally presiding over the case. The judge could also directly decide that the refusal of a party to disclose information is unjustified. In that case, the judge must refer the case to a different judge who will subsequently decide on the merits. That judge has discretion in deciding what consequences should follow from the refusal to disclose information.
- A party is obliged to keep information confidential if it has been received from a party to the proceedings before or during civil proceedings and this other party has requested that the information should be kept confidential.
- Parties will no longer be allowed to file separate applications in relation to facts and gathering evidence before or during the civil proceedings. Instead, all applications must be bundled together in one set of preliminary proceedings.
- Once a party has filed an application for preliminary proceedings, an oral hearing will take place in which the parties will be expected to discuss the case with the judge. For instance, a judge may help the parties to (i) establish which facts are relevant for reaching a solution or (ii) decide whether further proceedings are necessary, effective and efficient for retrieving all relevant information. In addition, a judge may explore whether there is scope for the parties to resolve matters and actively take steps to facilitate settlement discussions at an early stage.
- Parties must indicate in their first written submission what evidence they possess in relation to the facts that are relevant to the case. Parties are obliged to submit relevant witness statements, which are obtained before initiating civil proceedings. If these witness statements have not been obtained, parties must state the reason for not doing so.
- Judges are expected to actively promote truth-finding in civil proceedings. Therefore, they may ask questions with respect to the grounds of claims and defences, and bring any inconsistency or lack of clarity to the attention of the parties in the case. They may also suggest a party changes the grounds of its claim or defence in a particular way. Subject to the fundamental right of the parties to a fair hearing, judges may use facts that are not strictly part of the claims or defences of the parties, as a basis for their decision after all if these facts have become apparent to the judge during the proceedings in a different way.
- The law of evidence within Dutch civil procedure will be reconciled with other recent changes that encourage judges to proactively coordinate civil proceedings. During the proceedings, judges will have wide discretion to decide whether or not and to what extent additional fact gathering is necessary. Judges will have to balance the interests of ensuring a case is managed efficiently and effectively against the interests of truth-finding.
- All requests in relation to evidence will generally become subject to the same material threshold. The draft bill therefore makes it easier to obtain disclosure of documents [bescheiden] because parties may no longer refuse disclosure by arguing that the administration of justice can be achieved without disclosure. In addition, disclosure will no longer be limited to documents [bescheiden]. Instead, a party may also request disclosure of data [gegevens]. Data for this purpose includes physical objects as well.
- Parties will be able to rely on a statutory regime for preserving evidence if they fear that evidence will be destroyed or obfuscated. This statutory regime codifies a Supreme Court judgment (ECLI:NL:HR:2013:BZ9958) that has allowed parties to apply to the court to preserve evidence under specific circumstances.
- Finally the draft bill proposes changes on particular rules with regard to the valuation of evidence. The draft bill abolishes the rule that a statement of a witness that is also a party to the legal proceedings has a diminished evidential value where this party bears the burden of proof. The draft bill also enhances the evidential value of statements made by a bailiff.
Some of the proposals in the draft bill are of course likely to increase efficiency of civil legal proceedings. The draft bill raises concerns though that an increase of efficiency is being achieved at the cost of more fundamental values. The two most remarkable changes in this respect are the freer role envisaged for judges and the advancing of the fact finding phase as a result of which parties may lose the possibility to submit additional evidence at a later stage during the proceedings.
It is likely that judges – backed up by legislation along the lines of the draft bill – will be inclined to take a more proactive role from the outset of the proceedings. They will of course do so with all the best intentions. Nonetheless this enhanced influence of judges on the scope of the dispute is likely to raise questions regarding their impartiality and the autonomy of the parties, especially where a judge makes suggestions regarding the grounds of a claim or defence.
Besides, parties and judges will not always be able to determine exactly what facts and evidence are relevant at the beginning of the proceedings. At that moment, there may simply be insufficient insight into the precise claims or defences that will eventually be filed. To be "safe", it is possible that parties will submit every single piece of information that might be remotely relevant to the claim. This caution is likely to increase the complexity of the proceedings rather than reduce it. So, whether the proposals save time and costs in practice remains to be seen.