Netherlands - Market Insights

Modernising the Dutch civil procedural rules on evidence

Introduction

On January 1, 2025, the Dutch Act on the Simplification and Modernisation of the Rules of Evidence in Civil Procedure (Wet vereenvoudiging en modernisering bewijsrecht) came into force. This Act introduced new rules on evidence that make it possible for the parties of a dispute to obtain information for use in that dispute. These rules clarify the discretion a judge has during an oral hearing to discuss the information received by the parties. The amendment of the Dutch Code on Civil Procedure (DCCP) is based on a report of the expert group on the modernisation of the Dutch civil procedural rules on evidence which was published in 2017. This report focused on the gathering of information required as evidence in a civil procedure.

The problem in civil procedure is that often parties do not have all the relevant information in order to motivate and, where necessary, prove their positions. At the same time, they are obliged to provide all the information necessary to substantiate their claims. If a party lacks the relevant information, it is impossible for this party to start proceedings. As a result, access to justice may be limited or even denied in such situations. It is therefore necessary to provide parties with effective instruments that allow them to gather the relevant information necessary to substantiate their claims. In addition, judges should have the necessary instruments to get the information from the parties which is required to make a decision in the dispute presented to the court.

The new amendments to the DCCP intend to provide instruments for the parties as well as for the courts to gain access to the information needed in civil proceedings for the substantiation of a claim or to make a decision. The intention of this amendment to the DCCP is that the parties involved use these new instruments before starting court proceedings. This enables the parties to provide all the information required to decide the dispute. The new Act introduced a number of provisional measures to gather information prior to the court proceedings on the merits. Furthermore, the right to disclose information and/or documents was amended. In addition, the possibility of the seizure of evidence was generally laid down in the DCCP. Finally, a more active judicial role was introduced.

Provisional measures to gather information

One of the main intentions of the new Act on evidence was to allow the parties to gather all the information and evidence necessary for the substantiation of a claim in court proceedings. The new Act introduces the possibility to file for provisional evidence gathering. This must be filed before the start of the main proceedings. Whereas the previous DCCP contained provisional measures to gather information and evidence, these measures were regulated in separate provisions. Article 196 of the DCCP introduces a new provision, according to which a judge can be asked to order one or more provisional evidence measures. The application applies to all different provisional measures, such as the hearing of witnesses or experts as well as the disclosure of access to documents. It is also possible to apply for a combination of one or even more provisional measures. This new Act aims to provide one general application irrespective of which measure the parties request. By doing so, access to provisional measures regarding the gathering of evidence are simplified.

Based on the introduced provisions, the judge generally grants the request unless:

• the information required is insufficiently determined;
• the requesting party has insufficient interest in such an evidence measure;
• the application is in conflict with the proper course of procedure; or
• it can be seen as a misuse of power.

In addition, the request may be denied if there are other legitimate reasons against granting the issue of a provisional evidence measure. Such a request can only be filed before the main proceedings are initiated. If the main proceedings have already been initiated, the parties can no longer request such measures to gather evidence. In that case, the parties are dependent on the judge who is able to order that one of the parties discloses certain information or documents.

After the request has been filed, the judge hears all parties. This hearing usually takes place in an oral hearing. An oral hearing is not necessary if the counterparty is unknown. In such a case, the court issues its decision without an oral hearing. The parties may file an appeal according to Article 200 of the DCCP within four weeks after the decision has been issued. However, an appeal is always possible against decisions regarding the disclosure of information. An appeal against decisions regarding other provisional evidence measures can only be filed if the judge issuing the decision grants leave to appeal. The parties involved must apply for leave to appeal.

Disclosure of documents and information

The rules amending the disclosure of documents and/or information have been amended by this new Act. A new extrajudicial basis for disclosure of documents and/or information was introduced. Based on Article 194 of the DCCP a party has the right to gain access to documents and/or information regarding a legal relationship if this party has sufficient interest. The disclosure of the documents and/or information can be requested from any other party irrespective of whether there is a direct legal relationship between the requester and the party holding the documents/information. In order to prevent fishing expeditions, the requesting party must demand the disclosure of certain documents and/or information. It is therefore not sufficient to request general access to information, but the information and/or documents must be specified in the request.

If the party having the documents and/or information refuses to grant access to this information, the requesting party may submit a request to disclose information to the court. The requirements for gaining access through a court order are the same as those for obtaining access from the other party. The request for disclosure of information can be submitted to the court via a preliminary injunction. However, it is necessary to submit such a request before the main court proceedings start. The intention of this new law is to provide parties with instruments that allow them to prepare the proceedings on the merits and provide the court with all the information needed to decide such a dispute. A party therefore has the option to request access to information from the party having this information or to go directly to the court and start preliminary proceedings.

Seizure of evidence

The new Act has introduced general rules on the seizure of evidence. Seizure of evidence was already regulated in the DCCP but these rules were applicable only to civil proceedings regarding the enforcement of intellectual property rights. The new rules apply to all civil proceedings.

According to the new rules, party has the option to request the seizure of evidence. The requesting party must show that there is a legal relationship, the information refers to this relationship and that the party has sufficient interest in getting access to the information. The court examines prima facie whether these requirements are fulfilled. The party holding that information is not heard prior to the issue of a court order. After the court has issued such an order, the requesting party can seize the information by engaging a bailiff. It must be taken into consideration that the requesting party does not gain access to the information. The seizure of evidence only protects the evidence; it does not grant the right to access it. In order to obtain access, the party needs to submit a request to the holder of the information or to the court.

Role of the judge

Finally, the introduction of the new rules on evidence aimed to provide judges with effective instruments to be able to decide a dispute. Therefore, according to Article 21 of the DCCP, judges have the possibility to request from the parties in a civil procedure to explain certain statements they have made or submit evidence proving facts or statements. At the same time, measures were introduced to guarantee the confidentiality of the information. The judges received a strong instrument that allows them to handle cases proactively.