Evidence law: this changed in procedural law on Jan. 1, 2025

Evidence law: this changed in procedural law on Jan. 1, 2025

The law is constantly changing. Since last week, several changes have been made to the procedural law. In the process, the law of evidence went on the upswing. Many trial lawyers are of the opinion that the changes are mainly editorial. A lot of newly introduced provisions do not change anything materially, but formalize an already existing practice. Lawyer procedural law Robert van Ewijk Discusses the main changes of the new law of evidence.

Judge's more active attitude in gathering evidence

The judge is now formally given a more active role in the process of gathering evidence, although this was already the case in practice. The judge has now officially been given a bit more latitude to ask questions, make inquiries or make suggestions. He has that power even if it would lead to a change in the basis of the claim or defense. To do so, however, the judge must have enough leads, and the parties retain the final say.

Obtaining inspection of opposing party's documents (843a (old) Rv becomes 194, 195 and 195a Rv)

The right of inspection of documents held by the opposing party has been relaxed. Section 843a Rv (old) has been replaced by the articles 194, 195 and 195a Rv. Previously, it was necessary to make it ‘sufficiently plausible’ that you had a right of action (art. 843a Rv (old)). This requirement disappears. Instead of the requirement that you have a ‘legitimate interest’, you must now show that you have a ‘sufficient interest’ in obtaining access to the documents. So it becomes more of a case of ‘yes, unless’ rather than ‘yes, provided’. In addition, the right of inspection can now also be used to gain access to documents held by third parties who are not parties to the dispute. Furthermore, it is now explicitly stipulated that the rules also apply to computer files.

Record of observations

The law had already provided that whatever a public official (such as a notary public or a bailiff) observes within the scope of his powers and records in a deed constitutes compelling evidence of what that official observed (article 157 paragraph 1 Rv). However, a deed of a bailiff in which he or she observed that a certain fact occurred (e.g., the state of a construction work at the time the building contract was rescinded) is not so much within the scope of his or her powers. Admittedly, even before January 1, 2025, a bailiff's deed of ascertainment carried considerable weight, but it was not compelling evidence. That has now changed. In the new article 207 Rv is the legal authority for the bailiff - after obtaining permission from the preliminary relief judge - to draw up an official report of his observations of facts at a certain location. Pursuant to article 157 paragraph 1 of the Dutch Code of Civil Procedure, the record drawn up in that context provides compelling evidence of his observations.

Evidence seizure

At article 205 Rv The precautionary seizure of evidence is established by law. The seizure of evidence must be followed up with an exhibitor's claim (to inspect and/or deliver documents) of the documents in the attachment leave mentioned documents.

Disclosure right extended

In addition, the statutory right to privilege has been expanded. The rule is contained in article 165 paragraph 1 Rv. In addition to the (ex)husband / (former) registered partner and relatives by blood or marriage, the ‘life partner’ or ‘former life partner’ are now also entitled to privilege. The rule was expanded because fewer and fewer people are getting married or entering into a registered partnership.

Judge goes more lenient on statements

Previously, the court could disregard a statement made if not all parties were present at the witness examination (art. 192 paragraph 2 (old) and 207 paragraph 2 (old) Rv). Also, a statement made by a party witness could not benefit herself, but only contribute to supplementing evidence (art. 164 paragraph 2 (old) Rv). Both rules expired on January 1, 2025. The court now has free discretion on how to value both the outcome of party witness testimony and the outcome of evidentiary proceedings (where a party was missing).

Preliminary evidence transactions

The court can now be asked in a single application to allow various evidentiary procedures. For example, a (preliminary) hearing of witnesses, an expert examination, or inspection of documents that are only available to the other party. This is stated in the new article 196 Rv.