A preliminary witness examination (voorlopig getuigenverhoor) is a court hearing at which witnesses are questioned under oath before proceedings on the merits have been started. In the Netherlands it is one of the preliminary evidentiary measures governed by article 196 and following of the Code of Civil Procedure, and it allows a party to establish the facts, preserve testimony and assess its chances before committing to litigation. Since 1 January 2025 the request must be made before the case on the merits is brought; it can no longer be used once proceedings are pending.
What the procedure is for
Dutch civil procedure has no pre-trial discovery. A claimant is expected to state the facts and, where they are disputed, to prove them, and there is no general obligation on the other side to hand over its file first. The preliminary evidentiary measures fill that gap in a controlled way: a party that needs to know what happened can ask the court to hear witnesses, to appoint an expert, to inspect a place or to order the production of documents, without first issuing a claim it may not want to bring.
Three purposes are recognised, and it is worth naming them because the request has to be justified. The first is to assess the legal position: to find out whether there is a claim worth bringing, or a defence worth running. The second is to preserve evidence that may otherwise be lost, because a witness is old or ill, is about to move abroad, or because memory fades. The third is to inform settlement: sworn testimony changes what both sides think a case is worth, and a substantial proportion of these matters settle without a claim ever being issued.
Why testimony taken early is worth more
The examination takes place before a judge, the witness is sworn, and the registrar draws up an official record of what was said. That record is a document with evidential force, and it can be produced in later proceedings between the same parties, where the court will weigh it as it weighs any other evidence. What it does above all is fix an account at a point in time. A witness who has given a sworn statement about a meeting will find it much harder, two years later, to remember the meeting differently.
This is not an exotic instrument. It is used routinely in shareholder disputes, construction and professional liability claims, employment matters where the facts around a dismissal are contested, and in insurance and fraud investigations. Our overview of Dutch litigation law sets out where it sits in the wider procedural landscape.
What the procedure achieves
| Purpose | Effect on your position |
|---|---|
| Preserving evidence | Secures an account under oath from a witness who may later be unavailable or whose memory will fade |
| Assessing the case | Shows what the evidence actually is before the costs of proceedings are incurred |
| Settlement leverage | An official record of damaging testimony changes the other side view of its risk |
| Identifying the defendant | Clarifies who was involved and in what capacity, which matters where several companies in a group could be liable |
What changed on 1 January 2025
The Act on the simplification and modernisation of the law of evidence entered into force on 1 January 2025 and it reshaped this area, so older guidance, including guidance that still refers to article 186 of the Code of Civil Procedure, is out of date. Four changes matter in practice.
- One regime, one petition. The separate procedures for a preliminary witness examination, a preliminary expert report, a preliminary site inspection and the right of inspection have been brought together in a single set of provisions beginning at article 196 of the Code of Civil Procedure, with uniform criteria for granting and refusing a request. Several measures can now be asked for in one petition, so a request to hear three witnesses and to appoint a technical expert no longer needs two separate applications.
- Only before proceedings. A preliminary evidentiary measure can be requested only before the case on the merits has been brought. Once the claim is pending, evidence is taken within those proceedings instead.
- A duty to prepare. Article 21 of the Code of Civil Procedure now requires parties to gather, before proceedings are started, the information that can reasonably be foreseen to be relevant to the assessment of the claim or the defence. A court can attach consequences to a failure to do so, which turns preliminary fact-finding from a tactical option into something close to an expectation.
- The party-witness rule is gone. The old restriction on the evidential value of a statement by a party heard as a witness in its own case has been repealed. A director or a claimant giving evidence is now weighed by the court like any other witness, which materially improves the position of the party that has no independent witnesses.
The right to inspect documents has moved as well, to articles 194 and 195a of the Code of Civil Procedure. The threshold has been lowered from a legitimate interest to a sufficient interest, the requirement to establish the underlying claim first has gone, and information can now also be sought from a third party who is not involved in the dispute. Combining a request to hear witnesses with a request for documents in a single petition is often the most efficient route.
How the procedure works
The procedure starts with a petition to the court that would have jurisdiction over the dispute on the merits. The petition is not a formality. It has to identify the parties, describe the dispute that is expected or feared, state the facts that the applicant wants to establish, and name the witnesses to be heard and where they can be reached. The counterparty is summoned and may file a defence, and the court then decides, usually after a short hearing.
The threshold for granting the request is deliberately low. A request that meets the statutory requirements is granted unless one of the recognised grounds for refusal applies: the applicant has no sufficient interest, the applicant is abusing its power, the request is contrary to the proper conduct of proceedings, or another compelling interest opposes it. In practice the most common reason for refusal is that the request is a fishing expedition, a general trawl through the other side affairs without a defined factual issue. Specificity in the petition is therefore not drafting polish; it is the difference between an order and a refusal.
Once the request is granted, the court fixes a date, the witnesses are summoned and are obliged to attend. The other party is entitled to be present, to be represented and to put its own questions, and that entitlement is not negotiable: an examination held without the counterparty having had a fair opportunity to participate loses most of its value as evidence in later proceedings. Our article on preliminary hearings under Dutch law explains how these sessions are conducted.
Who does what at the hearing
The hearing is a court session, less formal than a trial but conducted under judicial control. The judge presides, administers the oath, decides whether a question may be put and rules on any refusal by a witness to answer. The applicant lawyer questions first and sets the agenda; the other party lawyer questions afterwards and may object. The witness answers on oath. The registrar records the evidence, and the record is read back to the witness, who is asked to confirm and sign it. Corrections are made at that moment, not afterwards, which is why counsel must listen to the read-back as carefully as to the evidence.
A witness in Dutch civil proceedings is under a duty to appear and to testify truthfully. That duty is enforceable: a witness who fails to attend can be brought before the court, and in the last resort the court can order detention until the evidence is given. Perjury is a criminal offence. Witnesses are entitled to compensation for their time and travel.
When a witness may refuse to answer
Three categories of privilege are recognised, and they are narrower than clients often assume.
- Family privilege. A spouse or registered partner, a former spouse or partner, and close blood relations and relations by marriage of a party may decline to give evidence.
- Professional privilege. Those who are bound to secrecy by virtue of their office, profession or position, notably lawyers, notaries, doctors and clergy, may refuse to answer questions about what was confided to them in that capacity. The privilege belongs to the professional and covers only information entrusted in the professional relationship; a lawyer commercial correspondence about a lease is not privileged simply because a lawyer wrote it.
- Self-incrimination. A witness may refuse to answer a specific question where answering would expose the witness, or a close relative, to the risk of criminal prosecution.
Privilege is asserted question by question, not as a blanket refusal to attend, and the court decides whether it applies. A witness who wrongly refuses can be compelled; a witness who has a genuine ground and asserts it properly cannot.
The strategic case for going first
The commercial argument for a preliminary witness examination is that it converts uncertainty into information at a fraction of the cost of finding out the same thing at trial. Before you commit to proceedings you learn whether the key witness supports your version, whether that witness is credible under questioning, and whether there are facts or defences you had not accounted for. A case that looked strong on the documents sometimes does not survive the first hour of evidence, and finding that out early is a saving, not a defeat.
It also protects against the loss of evidence, which is a real risk in commercial disputes that take years to mature. People leave the company, emigrate, fall ill or simply stop cooperating once they no longer work for the party that needs them. A former employee who is willing to speak today may be unreachable in eighteen months.
And it shifts negotiations. An opponent who has heard its own project manager confirm, on oath and on the record, that the warning was given and ignored, is negotiating a different case than it was the week before. Combined with security for the eventual claim, the effect is stronger still; our note on prejudgment attachment in Dutch law explains how a conservatory attachment can be used alongside preliminary evidence gathering.
Preparing the examination
Preparation decides the outcome. The hearing itself is short, the questioning is live, and there is no second attempt: once a witness has given an account under oath, that account is on the record whether it helped you or not.
Choosing the witnesses
Start from the factual issue rather than from the list of people involved. Write down the propositions you need to establish, then ask which person can speak to each of them from direct knowledge. Witnesses with first-hand knowledge carry the case; witnesses who can confirm a detail, such as the colleague who was copied on the email or who was in the room, add corroboration and are often more credible precisely because they have less at stake. Where the issue is technical, an expert report under the same set of provisions is usually a better instrument than a witness.
Think about order as well. Hearing a hostile witness before you have secured the supporting accounts gives that witness the first word on the record, and gives the other side an early view of your theory. Hearing your own witnesses first fixes the narrative that the hostile witness will then have to contradict.
Framing the questions
Two kinds of question do different work. Open questions, beginning with what, who, when, where and how, let the witness build a narrative in their own words, and a narrative given voluntarily is harder to retract than an answer extracted piece by piece. Closed questions pin down a single fact and leave no room for interpretation. A good examination opens wide and closes tightly: let the witness describe the meeting, then establish exactly who was present, on what date, and what was said about the deadline.
Leading questions, which contain their own answer, are of little use here. The judge may disallow them and, more importantly, an answer that the questioner put into the witness mouth carries almost no weight when the record is read months later by a different judge.
| Do | Avoid |
|---|---|
| One clear question at a time | Compound questions that let the witness answer only the easy half |
| Neutral wording | Loaded or emotive language that invites a challenge |
| Listening to the answer before the next question | Working through a script and missing what was actually said |
| Following up on vague statements until they are specific | Letting an ambiguous answer stand on the record |
| Putting the document to the witness and letting them read it | Summarising a document and asking the witness to agree |
Preparing a friendly witness, properly
Preparing a witness is permitted and sensible; coaching a witness is not, and it is dangerous both professionally and evidentially. The line is between refreshing memory and supplying content. It is proper to take the witness through the relevant documents, to explain what the hearing will look like, who will be present and what the oath means, and to run through the kind of questions that will be asked so that the experience is not disorienting. It is not proper to tell a witness what to say, to rehearse an answer, or to discuss the evidence of other witnesses with them. A witness whose account collapses under cross-questioning because it was learned rather than remembered damages the case far more than a nervous witness who simply tells the truth.
The risks, and how to contain them
This is a two-edged instrument and it should not be requested reflexively. Four risks recur.
You show your hand. The petition has to state the facts you want to establish, and the questions you ask reveal the theory behind them. The other side receives that information at a point when it may not yet have thought about the case at all. Where the strength of your position lies in the other side not knowing what you know, the calculation may go the other way.
The evidence may go against you. A witness under oath says what that witness believes to be true, not what the party that called them hoped. Once given, the account is on the record and the other side can use it. The mitigation is research: know what the witness is likely to say before the summons goes out, from documents, from earlier statements, and from what the witness has told others.
Delay and cost. The petition, the hearing on the request and the examination itself take months, and the costs are the court fee, counsel time in preparation and attendance, and the witnesses expenses. Court fees are set annually by law and depend on the type of case and the party, so ask for a current estimate rather than working from a figure in an older article. The comparison that matters is not with doing nothing, but with the cost of discovering the same facts at trial.
Procedural error devalues the evidence. The record is only as good as the process behind it. A witness who was not properly summoned, a counterparty who was not given a genuine opportunity to attend and question, improper pressure on a witness, or questioning that the judge should have stopped, will all reduce the weight a later court gives to the testimony. The court appraises evidence freely, and freely includes the freedom to give a flawed record very little weight.
Two further points are worth knowing before you decide. A decision granting a request for a preliminary evidentiary measure is generally not open to appeal, while a refusal can be challenged, which means the counterparty rarely succeeds in stopping the examination on procedural grounds alone. And the costs of the procedure do not automatically follow the event; they are usually left where they fall unless the eventual proceedings decide otherwise.
When another instrument fits better
A witness examination is the right tool where the disputed issue is what people did, said or knew. It is the wrong tool for a great many other questions, and since 1 January 2025 the alternatives sit in the same set of provisions and can be combined in one petition.
Where the issue is technical, a preliminary expert report is stronger. A court-appointed expert who inspects the installation, the building or the accounts and answers questions formulated by the parties produces evidence that carries more weight than a report one party commissioned itself, and the other side has a say in the questions and in the choice of expert. Where the issue is the state of a place, a preliminary site inspection can be requested, and it is often combined with an expert.
Where the issue is what the documents say, the right of inspection is the instrument. Under articles 194 and 195a of the Code of Civil Procedure a party with a sufficient interest can require specific data relating to a legal relationship to which it is a party to be produced, and since the reform that request can also be directed at a third party. The information must be produced unless a duty of confidentiality applies or there are weighty reasons to withhold it. The old requirement to establish the underlying claim first has gone, which makes the instrument considerably more usable than it was.
Where the urgency is real and a decision cannot wait, summary proceedings before the interim relief judge remain the faster route, and preliminary evidence gathering is not a substitute for them. And where documents or goods are at risk of disappearing, a conservatory attachment for the purpose of securing evidence or delivery can be applied for, on notice to the court only, before the other side knows anything about it.
Choosing among these is a matter of what you need to prove and against whom. Asking for the wrong measure wastes months, and asking for all of them without a defined factual issue invites a refusal for lack of sufficient interest.
How the evidence is weighed afterwards
Dutch civil procedure allocates the burden of proof to the party that relies on the legal consequences of the facts it asserts, unless a different allocation follows from a special rule or, exceptionally, from reasonableness and fairness. That allocation decides who has to persuade the court, and it is the reason a preliminary examination is often more valuable to a claimant than to a defendant: the claimant is the one who will have to prove the facts.
Once the evidence has been taken, the court appraises it freely unless the law provides otherwise. The official record of the examination proves conclusively what the witness said, but not that what the witness said is true; the truth of the account is for the court to assess, against the documents, the other testimony and the inherent plausibility of the story. A witness who is consistent, who distinguishes clearly between what was seen and what was inferred, and whose account fits the contemporaneous documents will be believed. One whose recollection improves conveniently over time will not.
The repeal of the restriction on party-witness statements has changed the arithmetic here. Previously, a party who could only offer its own evidence about a fact it had to prove was in a very weak position, because that evidence could not by itself carry the burden. Now it is weighed like any other testimony, which particularly benefits small businesses and individuals in disputes where the only people present were the parties themselves. It does not make a bare assertion sufficient, but it removes an artificial ceiling.
Finally, evidence taken preliminarily does not bind the judge on the merits to hear no further evidence. A witness can be heard again, and where new facts emerge the court may order it. The record is a strong starting point, not the end of the enquiry, and building a case still means putting it together with the documents. Our overview of Dutch civil law guides collects the underlying rules of procedure and evidence.
Common questions
Can I be forced to give evidence in the Netherlands
Yes. Anyone summoned as a witness in Dutch civil proceedings is obliged to attend and to answer truthfully, and the court has means of enforcement, up to being brought before the court and, in the last resort, detention. The exceptions are the privileges described above: close family of a party, professionals bound to secrecy in respect of what was confided to them, and questions whose answer would expose the witness or a close relative to criminal prosecution. Privilege is claimed per question, and the court decides.
How does this differ from an American deposition
The difference is judicial control. A deposition in the United States is taken out of court, by the lawyers, without a judge in the room, as part of a broad discovery process. A Dutch preliminary witness examination is a court hearing from the outset: a judge presides, administers the oath, controls the questioning and rules on objections, and the registrar makes the official record. There is no equivalent of American discovery in Dutch civil procedure, which is precisely why these preliminary measures, and the right of inspection of documents, carry the weight they do.
What does it cost
The main items are the court fee for filing the petition, the fees of your lawyer for drafting it, preparing the examination and attending, and the compensation payable to witnesses for their time and travel. Court fees are fixed by statute and revised each year, so any figure quoted in an article dates quickly; your lawyer can give you the current amount for your type of case. Against that stands the cost of proceedings on the merits, which is a multiple of it, and the value of not bringing a claim that the evidence will not support.
Can the testimony be used in a later case
Yes, and that is the point. The official record of the examination can be produced in subsequent proceedings between the same parties and has evidential force there. The judge deciding the merits assesses its weight along with the rest of the evidence, and may hear a witness again if there is reason to. Evidence taken in the presence of a party that was properly summoned and able to question the witness carries considerably more weight than evidence taken behind that party back.
Law & More advises businesses and individuals on preliminary evidence gathering in the Netherlands: assessing whether an examination will help or harm your position, drafting the petition so that it survives the grounds for refusal, combining a witness examination with a request for documents or an expert report, conducting the questioning, and using the resulting record in settlement negotiations or proceedings. If you are weighing up a dispute and do not yet know what the evidence is, contact our litigation lawyers before you issue a claim.
