Dutch law lets you have witnesses questioned under oath before you start a court case, or alongside a case that is already running. This is the preliminary witness examination (het voorlopig getuigenverhoor), provided for in Article 186 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv). The main exception: a court can refuse the request in a small number of defined situations, for example when you have no legitimate interest in the examination.
The value of the instrument lies in timing. You get to see what the evidence actually is before you commit to a claim or a defence. That can show a case is stronger than expected, or that it is not worth bringing at all – a considerably cheaper way to reach that conclusion than after a full trial.
When does the court grant a request?
The threshold is low. If you set out concretely enough what you want to prove and why, you are generally entitled to the examination. The court does not assess in advance whether the evidence will actually help your case.
Refusal is limited to defined situations: you have no sufficient interest in the examination, the request amounts to an abuse of that power, granting it would conflict with due process, or another compelling interest weighs against it.
Why is the threshold set so low?
The examination is meant to help you assess a case, not to pre-judge it. That is also why it is available at an early stage, before the other party has filed a defence and before positions have hardened.
How does the procedure work?
You start it with a petition to the court that would have jurisdiction over the main claim, naming the witnesses and describing the facts you want proved. The other party is heard on the request, may attend the examination, and both sides may put questions to the witnesses.
What obligations do witnesses have?
Witnesses must appear and tell the truth once they are under oath. Giving false evidence under oath is perjury (meineed) under Article 207 of the Dutch Criminal Code (Wetboek van Strafrecht), a criminal offence carrying a substantial maximum sentence. A witness who fails to appear can be compelled to do so.
Some witnesses may invoke a right to remain silent: close relatives of a party, and professionals bound by a duty of confidentiality, such as lawyers, doctors and notaries.
What happens to the statements afterwards?
The statements are recorded in a report. That report can be used as evidence in the proceedings that follow, with the same weight as evidence given at trial.
Why do parties request a preliminary examination?
Three reasons come up most often: to test a case before spending money on proceedings, to secure evidence that may not be available later – a witness who is elderly, unwell, or about to move abroad – and to record an account while memories are still fresh, which in commercial disputes about what was said during negotiations is often decisive.
What is the downside?
The examination also shows the other side what your evidence is, and a witness who performs badly cannot be un-heard. Treat it as an instrument to use deliberately, not routinely.
An illustrative example: a supplier believes a customer promised, in a phone call, to pay for extra work carried out. Before starting proceedings, the supplier requests a preliminary examination of the two people who were on that call. Their answers show the promise was only ever conditional – information the supplier can now use to decide whether to sue at all.
In summary
- A preliminary witness examination lets you have witnesses heard under oath before or during proceedings, under Article 186 Rv.
- The threshold to obtain one is low; refusal is limited to a few defined situations.
- Witnesses must appear and testify truthfully; false testimony under oath is a criminal offence.
- The resulting statements can be used as evidence in later proceedings.
- Weigh the strategic cost: the examination also shows your evidence to the other side.
Frequently asked questions
Can I request a preliminary witness examination before I have started a claim?
Yes. That is one of its main uses: it lets you test the evidence before you decide whether to bring a claim at all.
Can the other party refuse to take part?
No. Once the court has granted the request, the other party is heard on it and may attend and question witnesses, but cannot block the examination itself.
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