In a public consultation in 2018, the Minister for Legal Protection presented a draft bill with proposals to modernise and simplify the law of evidence in Dutch civil procedure. This draft bill was, in a way, quite radical. For instance, with a view to enhancing 'truth finding' in civil proceedings, it proposed that courts be permitted to investigate, on their own initiative, facts on which none of the parties to the proceedings are relying. The draft bill also introduced a broad pre-trial obligation for parties to gather and disclose information, in a process resembling pre-trial discovery in common law jurisdictions. Such a pre-trial obligation would, according to the Minister, promote efficiency and effectiveness in civil proceedings.
In the public consultation, critical questions were raised by Stibbe litigators (as well as others) as to whether such departures from established civil procedure notions, such as party autonomy and judicial passivity, are in fact desirable. In addition, several responding experts questioned the effectiveness of the contemplated pre-trial information-gathering obligation. They also raised the question whether it would not slow down – rather than speed up – the proceedings, and even discourage parties from initiating civil proceedings. In response, the Minister revised the draft bill. The revised bill (in Dutch) is currently under review with the House of Representatives (Tweede Kamer).
Role of the court
In the updated bill, the role of the court seems to be re-oriented towards its current role. The bill no longer explicitly provides that the court can base its decision on points of fact have not been relied on by the parties, as the draft bill did. The provision allowing the court to draw a party's attention to possibilities to extend the grounds of their claim or defence has also been removed.
Yet, the draft bill still provides that the court can – at its own initiative – "discuss" with the parties the grounds of their claim or defence within the scope of the dispute as defined by the parties (Article 24 Section 2 DCCP new). Of course, there is nothing wrong with the court discussing the facts of the case with the parties and if necessary, asking for clarification; this is common practice. But the question is what this provision adds to the tools that the court already has at its disposal. It would be undesirable for the vague language – "discussing the grounds" – to be interpreted as leeway for the courts to 'assist' litigants with their claim or defence. That would offset the balance between the parties and the court, and may compromise the court's independence.
There is reason to be wary, because the explanatory memorandum is ambivalent on this issue. On the one hand, it emphasises that it is up to the parties to determine the object of the proceedings, and that the aforementioned provision (Article 24 DCCP new) does not depart from the present case law of the Dutch Supreme Court. On the other hand, the memorandum states that the court may submit additional points of fact on which the parties have not – or not yet – relied. That is novel and implies a serious extension of the current role of the court. It is also contrary to the case law of the Dutch Supreme Court. This case law limits the decision-making process of the court to the facts on which parties explicitly rely, in order to protect the other party's right to be heard. If the Minister infers such competence for the court from the proposed bill ("discussing the grounds"), that would be a very broad – in fact, too broad – interpretation. If this is truly what the Minister envisages, this should be made explicit in the text. We hope, however, that no such extension of the role of the court is intended, and that this language in the explanatory memorandum is nothing more than a slip of the pen.
Pre-trial information-gathering duty
Following the criticism that the proposed pre-trial duty to gather and disclose relevant information was too far-reaching and burdensome to both the parties and the court, this obligation appears to have been narrowed down in scope. According to the updated proposal, the parties are required to collect and submit any information that they "reasonably" have at their disposal and that, in the given circumstances, can "reasonably be expected" to be relevant for the court's decision. Parties have to submit this information to the court during the proceedings. In view of this 'double reasonableness' test, the Minister considers the pre-trial information-gathering obligation to be feasible for litigants. The draft explanatory memorandum also states that this duty is only a best-efforts obligation, and that parties are expected to only select the "relevant" information.
It is not entirely clear to what extent this new rule will constitute new or changing obligations for litigants or will lead to different practice in disclosure. Currently, disclosure is limited to what the parties submit as exhibits in the proceedings, unless a party claims additional disclosure (pursuant to e.g. Article 843a DCCP). Litigants are already under an obligation to truthfully and in full present to the court the facts that are relevant for the decision (Article 21 DCCP). In addition, they are required to substantiate their assertions and, if necessary, provide evidence to the court.
Although an improvement from the draft, we remain critical of two elements in the updated bill that, in our opinion, may have adverse effect on the efficiency and effectiveness of civil proceedings. The scope of the pre-trial disclosure obligations needs clarification. The envisaged extension of the role of the court does not appear to be carefully thought out, particularly as courts have only recently (in 2019) been given more room for 'active guidance' in civil proceedings. We welcome a thorough parliamentary debate.