New law of evidence

On that date, the evidence law was simplified and modernized by the coming into force of the Simplification and Modernization of Evidence Act (‘Wet vereenvoudiging en modernisering bewijsrecht'). The new regulation mainly requires some practical adjustments from parties, some of which had already been put into practice through case law. Next to that, it is good to know that the rules on burden of proof and onus of proof remain unchanged. 

In as far as the practical adjustments are concerned, parties will need to consider  that they need to assure they have the evidence ready prior to the start of proceedings. Accordingly, it is to be expected that the number of requests to gather evidence in advance, such as seizure, inspection and provisional examination of witness, will increase. Below we will discuss a selection of the changes.

Under the old regime laid down in Art. 21 Rv (‘duty of truth’/’waarheidsplicht’), parties were already obliged to submit all relevant facts fully and truthfully. Two paragraphs now have been added to this article.  The new paragraph 2 states that the parties must collect and submit all information which is reasonably available to them, and which is reasonably foreseeable at an early stage. If a party fails to do so, the court may attach appropriate consequences in accordance with the new paragraph 3.

The new Article 196 Rv states that provisional requests regarding evidence must be submitted before the case is started.  

The same grounds for rejection now apply to all such requests: the information requested is insufficiently determined, there is insufficient legitimate interest, there is violation of the principles of due process, there is misuse of power and/or there are other important reasons for rejection.

The existing practice in which the judge directs the proceedings is now enshrined in law.  

Under the new act, it will be possible - with the judge's permission – to bring witnesses to the oral hearing. Incidentally,  a separate examination of witnesses can still be requested. 

Inspection can as of now only be requested by application (new articles 194 - 195a Rv). For such a request to be granted, there must be: (1) a legal relationship and (2) a sufficient interest in receiving (3) ‘certain information’ about such relationship. The old text stated 'certain documents'. The new text - making reference to ‘information’ - therefore also covers digital data. The possibility to inspect data belonging to a third party (as already adopted in case law), has been incorporated into the act as well (article 195a Rv).

The protective seizure of evidence –  implemented  for IP cases, however already applied in other cases as well  –  is now officially available for all types of cases (Articles 205 - 206 Rv). What such an application must comply with is stated in article 205 Rv and article 206 Rv regulates how the attachment must be made.   

Finally, article 207 Rv provides the new possibility to ask the judge in preliminary relief proceedings for permission to have an official report of observations drafted and by that to have certain facts recorded in a non-publicly accessible place. 

With the change of law, the positions of the parties and the role of the court  have been further shaped. For parties, this means their case must be well prepared and the evidence must be ready before proceedings are initiated. Together with a number of additional options for the court, this ensures that rulings are based on a set of facts that is as complete and accurate as possible.