Preliminary witness examination: hearing witnesses before a case

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), since 1 January 2025 part of the wider “preliminary evidence measures” (voorlopige bewijsverrichtingen) in Articles 196-204 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv), which replaced the old Article 186 Rv. The main exception: the court can refuse the request in a small number of defined situations, for example when you have no sufficient interest in it.

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.

Under Article 196(2) Rv, refusal is limited to defined situations: the request is not specific enough, you have no sufficient interest, it conflicts with due process (goede procesorde), it amounts to abuse of power, or other weighty reasons oppose it. In ECLI:NL:RBOVE:2026:4324 (District Court of Overijssel, 7 July 2026), the court applied these grounds and held that the merits of the intended claim are for the main proceedings, not for this request.

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 (verzoekschrift) to the court that would have jurisdiction over the main claim, naming the witnesses with their addresses and describing the facts you want proved, as Article 197(2) Rv requires. 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 an official report (proces-verbaal) signed by the judge. That report can be used as evidence in the proceedings that follow, and the court weighs it like other witness evidence.

Why do parties request a preliminary examination?

Since 2025 the same route also covers a preliminary expert report and a site visit (Article 196 Rv). For witness evidence, 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 example to illustrate: 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.

What should you check as the requesting party?

The request succeeds or fails on how concrete it is.

• Which specific facts do you want to prove, and why do they matter for your claim or defence?
• Which witnesses can confirm them, and do you have their names and addresses?
• Is there a risk that evidence will be lost, such as a witness moving abroad?
• Which court would hear the main case?
• Are you prepared for the other side to learn your evidence?

What should you check as the opposing party?

You are heard on the request and may attend and ask questions.

• Is the request specific enough, or is it a fishing expedition?
• Does one of the refusal grounds of Article 196(2) Rv apply?
• Do you want to name counter-witnesses for your own side?
• Which questions will you put to the witnesses at the hearing?

What can we do for you with a preliminary witness examination?

Our civil lawyers handle preliminary evidence measures for both requesting and opposing parties.

• We assess whether a preliminary examination helps your case or only reveals your evidence.
• We draft the petition with the facts to be proved and the witnesses to be heard.
• We draft the defence against a request and invoke the refusal grounds where they apply.
• We prepare and question the witnesses at the hearing.
• We use the official report to decide on, and prepare, the main proceedings.

Summary

• A preliminary witness examination lets you have witnesses heard under oath before or during proceedings, under Articles 196-204 Rv.
• The threshold to obtain one is low; refusal is limited to the grounds in Article 196(2) Rv.
• Witnesses must appear and testify truthfully; false testimony under oath is perjury under Article 207 of the Criminal Code.
• 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