Dutch civil procedure allows a party to have witnesses heard under oath before proceedings have been started, or alongside proceedings already under way. This is the preliminary witness examination, the voorlopig getuigenverhoor, and it is one of the more powerful and least used instruments in Dutch litigation.
Its purpose is to allow a party to establish what the evidence actually is before committing to a claim. That cuts both ways: it can show that a case is stronger than it looked, and it can show that it is not worth bringing at all – which is a considerably cheaper discovery than the same conclusion reached after a trial.
When will the court grant a request?
The threshold is low. A party who sets out sufficiently concretely what it wants to prove and why is generally entitled to the examination, and the court does not assess in advance whether the evidence will help. Requests are refused only in defined situations: where the applicant has no sufficient interest, where the power is being abused, where granting it would conflict with due process, or where another compelling interest opposes it.
That means the instrument is available at an early stage, before the other party has filed a defence and before positions have hardened – which is often precisely when the account of events is most useful.
How the examination works
The request is made by petition to the court that would have jurisdiction over the main claim, naming the witnesses and describing the facts to be proved. The other party is heard on the request and may attend the examination, and both parties may put questions.
Witnesses are obliged to appear and to tell the truth. They are heard under oath, and giving false evidence under oath is perjury, a criminal offence carrying a substantial maximum sentence. A witness who fails to appear can be compelled. Certain persons may invoke a privilege – close relatives of a party, and professionals bound by a duty of confidentiality such as lawyers, doctors and notaries.
The statements are recorded in a report, and that report can be used as evidence in the subsequent proceedings, with the same force as evidence given at trial.
Why parties use it
Three reasons recur. To test a case before incurring the cost of proceedings. To secure evidence that may not be available later – a witness who is elderly, ill, or about to move abroad. And to establish an account while memories are fresh, which in commercial disputes about what was said in negotiations is frequently decisive.
There is a strategic cost to weigh against that: the examination also shows the other side what your evidence is, and a witness who performs badly cannot be un-heard. It is an instrument to use deliberately, not routinely.
Advice on preliminary examinations
The decision to request a preliminary witness examination, and the framing of what is to be proved, shape everything that follows. Our litigation lawyers advise on whether it is worth doing, prepare and conduct the examination, and act for parties summoned as witnesses. Please contact Law & More.
