On 1 January 2025 some changes were made to the civil law of evidence. Naturally, these changes are also relevant for the claims handling field. The question is, for example, what the impact will be of the codification of the ever more active role of the courts in establishing the truth. The obligation to produce exhibits ‘out of court’ also sounds exciting. All the more reason to delve into the coming changes. Earlier, Isabel van Tuyll and Noor de Werd wrote an elaborate article on this topic in Maandblad voor Vermogensrecht [Property Law Journal] and they now list the highlights especially for you.
Strengthening the statutory basis of the obligation to substantiate a claim
The new act (‘WMB’) makes it mandatory to point out the obligation to substantiate a claim to the defendant in a writ of summons. The obligation to substantiate a claim, as set out in Section 21 CCP (Code of Civil Procedure), means in short that the parties have to substantiate their positions and defences concretely and with sufficient facts. According to the WMB, this means not only that the parties must mention the evidence they may have, but also that which they now have. If the parties fail to do so, the courts may attach consequences to this.
Active role of the courts in establishing the truth
In practice, the WMB codifies the ever more active governing role of the courts. The new subsection 2 of Section 24 CCP provides that the courts may ex officio discuss the ground of the parties’ claims with them within the boundaries of the dispute. A situation the courts must be able to address in particular is when a party refers to a specific position without expressly adopting this position. In that case, a judge may make a suggestion and the party may decide to go along with it or not. However, the rule remains that the court can only decide on the basis of the facts brought forward, in accordance with Section 24 subsection 1 CCP.
In addition, the WMB entails that the judge may designate persons to be called and heard as witnesses. Here too, the appreciation of the deposition of a party witness is at the judge’s discretion. Previously, the deposition of a party witness had limited evidentiary value.
Collection of evidence by parties
The WMB makes the provisional taking of evidence uniform and more efficient. Provisional taking of evidence – such as a provisional examination of witnesses, expert opinion, judicial site visit or inspection, or a request to produce exhibits – will be subject to equal test criteria from now on. The Act also provides for the allowance of provisional taking of evidence, unless one of the grounds for an exception applies. This ‘unless formula’ is a new thing for requests to produce exhibits.
In addition, the parties may ask for several takings of evidence in one request. Another new thing is that as long as the principal action proceedings are pending, the examining judge is competent to take cognizance of a request for the taking of evidence. It is therefore no longer possible to request a different court to take provisional evidence during the principal action proceedings.
The right of inspection
The right of inspection, also known as the obligation to produce exhibits, comes last. The new Section 194 subsection 1 CCP sets out the criteria of the obligation to produce exhibits and subsection 2 sets out the exceptions thereto. The major part of the changes concerns a codification of case law. A groundbreaking change is that the request for access will no longer be an ultimum remedium. The new starting point is that a request for access will be allowed, unless there is a reason for an exception. It is also new that the obligation to produce exhibits will apply out of court.
In order to prevent the request for access from becoming an illusion because data are destroyed or threaten to be lost in a different way, the WMB codifies the attachment of evidence in the new Section 205 CCP, and lends compelling evidentiary value to a ‘record of finding’.
What does this mean for practice?
Although the WMB breaks no new ground, it can certainly be regarded as a rethinking attempt with the purpose of arriving at ‘the truth’. With the WMB, the legislator stresses the importance of getting to the truth as soon as possible in the legal action.
Are you in need of in-depth information? Please read the article (in Dutch) of our colleagues Isabel van Tuyll van Serooskerken and Noor de Werd in Maandblad voor Vermogensrecht, or contact us.
