Members of Stibbe’s Commercial Litigation practice group have participated in the public consultation of a draft bill to modernise and simplify the law of evidence in civil procedure.
An overview of the draft proposal was provided previously on this blog by Petra Vos and Daan Barbiers.
The main goal of the draft bill is to enhance truth seeking in civil procedure and to promote efficiency and effectiveness. To that effect, the draft bill proposes to extend the role of the court. When considering a claim or defence, the court is expected to introduce and investigate facts that were not brought forward by the parties, therefore extending the factual grounds in the proceedings. The draft bill also introduces a broad pre-trial information gathering duty for the parties, resembling pre-trial discovery in common law jurisdictions.
In their response to the draft bill, the members of the Commercial Litigation practice group have raised questions regarding these two elements. Establishing the truth and efficiency are both important aspects within civil procedure to arrive at a just and balanced outcome, but the draft bill overreaches itself. If the court uses its initiative to introduce new factual grounds in the proceedings, it inevitably participates in the debate between the parties. This undermines the independent role of the court. The proposed pre-trial information gathering obligation of the parties will increase costs and complicate the proceedings. This may impede access to justice.
The response is available here (in Dutch).