Preliminary witness examination in the Netherlands: gathering evidence before you sue

A preliminary witness examination (voorlopig getuigenverhoor) is a court hearing where witnesses are questioned under oath before you start proceedings on the merits. Under article 196 and following of the Dutch Code of Civil Procedure, it lets you establish the facts, secure testimony and test your case before you commit to litigation. Since 1 January 2025 you must request it before the case on the merits is filed; it is no longer available once proceedings are pending.

What is the procedure for?

Dutch civil procedure has no pre-trial discovery. You are expected to state the facts and, where they are disputed, prove them, and the other side has no general duty to hand over its file first. The preliminary evidentiary measures close that gap: you can ask the court to hear witnesses, appoint an expert, inspect a place or order production of documents, without first issuing a claim you may not want to bring.

Three purposes justify the request. First, assessing your legal position: finding out whether you have a claim worth bringing, or a defence worth running. Second, preserving evidence that might otherwise be lost, because a witness is elderly, ill, about to emigrate, or memory simply fades. Third, informing settlement: sworn testimony changes what both sides think a case is worth, and many of these matters settle before a claim is ever filed.

Why early testimony is worth more

The examination takes place before a judge, the witness is sworn, and the registrar draws up an official record. That record has evidential force and can be used in later proceedings between the same parties, where the court weighs it like any other evidence. Above all, it fixes an account at a point in time: a witness who has testified under oath about a meeting will find it far harder, years later, to remember it differently.

This is a routine instrument in shareholder disputes, construction and professional liability claims, employment disputes where the facts around a dismissal are contested, and insurance and fraud investigations. Our overview of Dutch litigation law sets out where it fits in the wider procedure.

What the procedure achieves

What changed on 1 January 2025

The Act on the simplification and modernisation of the law of evidence (Wet vereenvoudiging en modernisering bewijsrecht) took effect on 1 January 2025 and reshaped this area, so older guidance that still refers to the former 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, expert report, site inspection and right of inspection are now brought together in a single set of provisions starting at article 196 of the Code of Civil Procedure, with uniform criteria for granting or refusing a request. You can ask for several measures in one petition, so hearing three witnesses and appointing a technical expert no longer needs two separate applications.
• Only before proceedings. You can request a preliminary evidentiary measure only before the case on the merits has been brought. Once a claim is pending, evidence is taken within those proceedings instead.
• A duty to prepare. Article 21 of the Code of Civil Procedure now requires you to gather, before starting proceedings, the information that could reasonably be foreseen as relevant to assessing the claim or defence. A court can draw an adverse inference if you fail to do so, which turns preliminary fact-finding from a tactical option into something closer to an expectation.
• The party-witness restriction is gone. The former limit on the evidential weight of a statement by a party heard as a witness in its own case has been repealed. A director or claimant giving evidence is now weighed like any other witness, which materially helps the party that has no independent witnesses of its own.

The right of inspection has moved too, to articles 194 and 195a of the Code of Civil Procedure. The threshold has been lowered from a “legitimate interest” to a “sufficient interest”, you no longer need to first establish the underlying claim, and you can now also seek information 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

You start with a petition to the court that would have jurisdiction over the dispute on the merits. The petition is not a formality: it must identify the parties, describe the dispute you expect or fear, state the facts you want to establish, and name the witnesses to be heard and where they can be reached. The court summons the counterparty, who 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 a recognised ground for refusal applies: you have no sufficient interest, you are abusing the procedure, the request conflicts with the proper conduct of proceedings, or another compelling interest opposes it. In practice, the most common reason for refusal is that the request amounts to a fishing expedition, a general trawl through the other side’s affairs without a defined factual issue. Being specific in your petition is not drafting polish; it is the difference between an order and a refusal.

Once the court grants the request, it fixes a date and the witnesses are summoned and obliged to attend. The other party is entitled to be present, to be represented and to put its own questions, and that right is not negotiable: an examination held without the counterparty having had a fair opportunity to participate loses most of its evidential value later. 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. Your lawyer questions first and sets the agenda; the other side’s 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 confirms and signs it. Corrections are made at that moment, not afterwards, which is why your lawyer needs to listen to the read-back as carefully as to the evidence itself.

A witness in Dutch civil proceedings must attend and testify truthfully. That duty is enforceable: a witness who fails to attend can be brought before the court and, in the last resort, detained until the evidence is given. Giving false testimony under oath is a criminal offence. Witnesses are entitled to compensation for their time and travel.

When can a witness 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 relatives by blood or marriage of a party may decline to give evidence.
• Professional privilege. Those bound to confidentiality by their office, profession or position, notably lawyers, notaries, doctors and clergy, may refuse to answer about what was confided to them in that capacity. The privilege belongs to the professional and covers only what was entrusted within that professional relationship; a lawyer’s routine 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 a real risk of criminal prosecution.

You assert privilege 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; one 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 turns 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 paper sometimes does not survive the first hour of live evidence, and finding that out early is a saving, not a defeat.

It also protects against the loss of evidence, 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 willing to speak today may be unreachable in eighteen months.

And it shifts negotiations. An opponent who has heard its own project manager confirm, under oath and on the record, that a warning was given and ignored is negotiating from a different position 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 work 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, it is on the record whether it helped you or not.

Choosing the witnesses

Start from the factual issue rather than the list of people involved. Write down the propositions you need to establish, then ask who can speak to each of them from direct knowledge. Witnesses with first-hand knowledge carry the case; those who confirm a detail, such as the colleague copied on an 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 too. Hearing a hostile witness before you have secured your own 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 a hostile witness then has to contradict.

Framing the questions

Two kinds of question do different work. Open questions, starting 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 an answer the questioner effectively supplied carries almost no weight when the record is read months later by a different judge.

Preparing a friendly witness, properly

Preparing a witness is permitted and sensible; coaching a witness is not, and it is risky both professionally and evidentially. The line runs between refreshing memory and supplying content. It is proper to take the witness through the relevant documents, explain what the hearing will look like, who will be present and what the oath means, and run through the kind of questions that will be asked so the experience is not disorienting. It is not proper to tell a witness what to say, rehearse an answer, or discuss other witnesses’ evidence 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 should not be requested reflexively. Four risks recur.

You show your hand. The petition must state the facts you want to establish, and your questions reveal the theory behind them. The other side receives that information at a point when it may not yet have thought seriously about the case. Where your strength lies in the other side not knowing what you know, the calculation may run the other way.

The evidence may go against you. A witness under oath says what they believe to be true, not what the party that called them hoped to hear. Once given, the account is on the record and the other side can use it. The mitigation is research: know what a witness is likely to say before the summons goes out, from documents, earlier statements and 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, your lawyer’s time in preparation and attendance, and witness expenses. Court fees are set by statute and revised periodically, so ask your lawyer for a current estimate rather than relying on a figure from an older article. The comparison that matters is not with doing nothing, but with the cost of finding out the same facts at trial.

Procedural error devalues the evidence. The record is only as good as the process behind it. A witness not properly summoned, a counterparty not given a genuine opportunity to attend and question, improper pressure on a witness, or questioning the judge should have stopped, will all reduce the weight a later court gives the testimony. The court appraises evidence freely, which includes the freedom to give a flawed record very little weight.

Two further points are worth knowing before you decide. A decision granting a preliminary evidentiary measure is generally not open to appeal, while a refusal can be challenged, so the counterparty rarely succeeds in stopping the examination on procedural grounds alone. And the costs of the procedure do not automatically follow the outcome; 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 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 the parties formulated together produces evidence that carries more weight than a report one party commissioned itself, and the other side has a say in the questions and the choice of expert. Where the issue is the state of a place, you can request a preliminary site inspection, 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 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. You no longer need to first establish the underlying claim, which makes the instrument considerably more usable than before.

Where the matter is genuinely urgent and cannot wait, summary proceedings before the interim relief judge remain the faster route; preliminary evidence gathering is not a substitute for them. And where documents or goods are at risk of disappearing, you can apply for a conservatory attachment to secure evidence or delivery, ex parte, before the other side knows anything about it.

Choosing among these depends on 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 puts the burden of proof on 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 why 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 is taken, the court appraises it freely unless the law provides otherwise. The official record proves conclusively what the witness said, but not that what was 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.

Repealing 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 weak position, because that evidence alone could not carry the burden of proof. It is now weighed like any other testimony, which particularly benefits small businesses and individuals in disputes where only the parties themselves were present. It does not make a bare assertion sufficient, but it removes an artificial ceiling.

Finally, evidence taken preliminarily does not stop the judge on the merits from hearing further evidence. A witness can be heard again, and the court may order this where new facts emerge. 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 must attend and answer truthfully, and the court can enforce this, 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 confidentiality about what was confided to them, and questions whose answer would expose the witness or a close relative to criminal prosecution. You claim privilege 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. Dutch civil procedure has no equivalent of American discovery, 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, your lawyer’s fees 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 periodically, 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, typically a multiple of it, and the value of not bringing a claim the evidence will not support.

Can the testimony be used in a later case?

Yes, and that is the point. The official record can be produced in subsequent proceedings between the same parties and has evidential force there. The judge deciding the merits assesses its weight alongside 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 without that opportunity.

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 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.

Summarised

• A preliminary witness examination lets you take sworn testimony before you file a claim, to assess your position, preserve evidence or push settlement.
• Since the 1 January 2025 reform, request it before proceedings on the merits start; once a claim is pending, evidence is taken within those proceedings instead.
• You can now combine a witness examination with a request for documents (articles 194/195a Rv) or an expert report in a single petition.
• The old limit on the weight of a party’s own witness statement has been repealed, which helps a party with no independent witnesses.
• Preparation decides the outcome: choose witnesses with direct knowledge, sequence them deliberately, and prepare without coaching.

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