A preliminary examination of witnesses is a hearing of witnesses by the judge at the request of one of the parties involved. The witness examination may take place in cases where no proceedings are pending or during an ongoing procedure. The witnesses are heard under oath. The purpose of a preliminary witness examination is to clarify facts relevant to a proceeding.
In a civil case, the party that relies on specific facts has de burden of proof. When a claim is disputed, the claimant will have to produce evidence persuasive enough to get the claim awarded by the Court.
Before commencement of a procedure, it is often not clear for a party whether he can substantiate his claims with sufficient evidence. In order for parties to assess their trial chances, the legislator has created the possibility to hold a provisional hearing of the witness.
In procedures, judges cannot guess who is right. The courts in the Netherlands will rely on evidence presented by the parties. If the judge fails to reach a decision on that basis, he can order a witness hearing. The final decision is then based on the statements made by the witnesses under oath. A problem is that these witness statements are only taken during a court hearing at a late stage in the proceedings. The passage of time can contribute to witnesses not remembering everything exactly. And the statements can sometimes have surprising content.
In order to prevent the loss of evidence and to enable parties to make a more thorough assessment of whether or not to initiate proceedings, the Netherlands procedural law offers the possibility of conducting a provisional witness hearing. This way, the judge can hear the various witnesses soon after the events and no evidence is lost.
A Dutch civil court can hear witnesses upon request by one of the parties involved, even before trial. Such preliminary witness hearings may be necessary in order to establish facts needed to substantiate a claim or needed for defense against a claim. The petition the claimant files with the court should indicate the facts he wishes to prove, as well as the particulars of the witnesses and the (possible) defendant(s).
Article 186 (1) of the Code of Civil Procedure provides that in cases where evidence is admitted by witnesses , a provisional witness hearing may be ordered without delay at the request of the person concerned before a case is pending. Paragraph 2 stipulates that even during proceedings already pending, the court may order a provisional witness hearing at the request of a party. Little use is made of this last option.
According to the law, the petition must contain the following information in addition to the usual information:
The law does not impose a high threshold for granting the request. In principle, the request is granted. This is only different if the facts or rights stated in the request that the applicant wishes to prove are irrelevant and cannot lead to an award of the described claim.
The broadly formulated allocation grounds ensure that the provisional witness hearing is suitable for abuse. In case the petitioner uses the hearing of witnesses for a fishing expedition or simply to harass the other party and the witnesses, it is possible to get the request is rejected. This can also be the case where there is conflict with the proper procedural order or where there is another compelling interest not to hear witnesses.
The provisional witness hearing also has disadvantages. One of these is that the evidence assignment is normally formulated by the court on the basis of the propositions and substantiation thereof in the procedural documents. The judge therefore knows where the evidence problem is and he can ask witnesses very specific questions that are relevant to the evidence assessment. With a preliminary witness hearing, it is often guessing what exactly should be proven, especially if the petition is broadly formulated. The preliminary witness examination can thus be quite ineffective and it cannot be excluded that all witnesses will have to be heard again later once the proceedings have been initiated.
Another disadvantage is that quite some time elapses from the moment the request for the witness examination is submitted and the moment the witnesses are actually heard, certainly if the other party does not cooperate. First the request is processed, then the decision is made. Subsequently a suitable date for the hearing needs to be scheduled, and witnesses may have to be heard on several dates. Only after completion of hearing of witnesses the procedure itself begin. The provisional witness hearing is therefore most effective if the questions to be asked are really clear in advance and often the other party will also have an interest in quickly establishing the facts.
If the petition to hear witnesses is granted, the Court schedules a date for the hearing. The requesting party will summon the witnesses to appear in Court. Witnesses are put under oath and subsequently heard by the judge and the lawyers of both parties if they also choose to ask questions.
The statement as made by the witness is laid down in a report that summarizes the statement and that is signed by the witness. The party that summoned the witness will be liable to pay the costs of the witness related to his appearance. Later in the procedure the party that looses the case will have to bear these costs.
After all the summoned witnesses have been heard, the defending party may decide to hear additional witnesses, in which event a new date for a hearing will be scheduled. After all witnesses are heard, the provisional witness hearing is closed, and the parties can subsequently on the basis of the evidence rendered decide whether or not to initiate a procedure.
Are you unsure whether you have a case or not? Could hearing witnesses at a court hearing offer a solution? Then contact us and ask us your question without obligation. We can advise you quickly whether or not a preliminary witness hearing is an option. We like to work with you solving your problems. Not for nothing is our motto: "Your problem, our concern."
Hein Kernkamp will gladly help you further.
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