Preliminary witness hearings in the Netherlands
Clifford Chance, Amsterdam
This article aims to introduce the concept of the preliminary hearing of witnesses of fact in the Netherlands (expert witness evidence is outside the scope of this article). This procedural possibility allows parties to hear witnesses in proceedings, separate from or prior to proceedings on the merits (if any).
Petition for preliminary witness hearings
Preliminary witness hearings can be requested prior to proceedings on the merits or during pending proceedings on the merits (in parallel). As preliminary witness hearings take place in separate proceedings, they must be distinguished from regular witness hearing during proceeding on the merits (which are outside the scope of this article). However, in terms of taking jurisdiction, the Dutch court that would have jurisdiction to deal with proceedings on the merits (if any) will also have jurisdiction in respect of an application to order preliminary witness hearings.
Preliminary witness hearings are usually requested to collect evidence to substantiate a (potential) claim, to obtain clarifications of facts, and to avoid loss of evidence. If petitioned for prior to proceedings on the merits, preliminary witness hearing may also be used by (potential) claimants to assess chances of success in proceedings on the merits.
The position under Dutch law on gathering information through a preliminary witness hearing is quite lenient in comparison to the Dutch law position relating to the disclosure of documents. In principle, an application to order preliminary witness hearings can only be denied on the following grounds:
• the Dutch Court has no jurisdiction;
• the applicant has no legitimate interest in preliminary witness hearings;
• the applicant abuses the right to request preliminary witness hearings;
• the application is contrary to the principles of due process; or
• there are other substantial objections against granting the application.
While the respondent has the right to file a brief opposing the application, chances of such a defence being successful are generally rather limited. The respondent may also request the court, when granting the preliminary witness hearings or during the preliminary witness hearings, impose limitations on the scope and the number of witnesses to be heard, or to hold the hearings in camera,1 in view of due process and the interests involved. However, the threshold for allowing these limitations is quite high.
The court will rule on the application by means of a written court order, in which it determines the factual themes on which the applicant is allowed to have witnesses examined. The court determines where and when the preliminary witness hearing will be held, normally after consultation of the parties at the end of the hearing.2 An order granting the application cannot be appealed, but a decision denying it can. The applicant will have the witnesses served with a summons to appear on the specified date.
A preliminary witness hearing in practice
At the hearing, the witness is first asked for their personal data, and then to take the oath or make a solemn affirmation. The judge may then pose questions to the witness before giving the applicant's counsel the opportunity to do so. It may be that the judge allows counsel to the other party to pose questions on the statements made by the witness (1) if both parties have appeared in the witness hearings and (2) if both parties agree to it. The other party can also wait and do so in separate rebuttal preliminary witness hearings. The relevant statements are recorded in a non-verbatim official court record that is drawn up by and read out by the judge, and can be corrected or confirmed and must then be signed by the witness on the spot.
The examination of the witness will in principle take place in the Dutch language. If the witness does not speak Dutch, an interpreter will be present to translate the questions and answers given by the witness. The costs of the interpreter are to be borne by the applicant. In some cases – for instance, if the witness is an English speaker and the supervising judge and all parties are comfortable with examining the witness in English – the hearing may also take place in English. However, the official court record must be drawn up in Dutch.
A party present may pose questions to a witness and the other party but may also be posed questions and confronted with a witness by the other side. Where a witness who is obliged to testify does not appear in court, fails to answer a question or refuses to sign the record of the testimony, the court may draw any adverse inference it considers appropriate in main proceedings.3 This could result in an undesirable decision of the court – for instance, for the party who failed to make available a witness who is in that party’s sphere of influence, such as an employee.
The respondent may be permitted to adduce rebuttal evidence during the preliminary witness hearings, provided that the rebuttal evidence relates to the same facts (specified in the decision of the judge) on which the applicant has been allowed to hear witnesses.4 After the preliminary witness hearing, the judge will set a date for the respondent to decide whether to hear the witnesses for rebuttal evidence and then set the date for these hearings.5 If that party also wants to examine a witness on other facts or legal issues subject of the preliminary witness hearing, it has to file its own petition for preliminary witness hearings with an extended scope.
Duties of a (foreign) witness
As mentioned above, the applicant is to summon the witnesses to appear on the hearing date as set by the court. This must be done by registered mail or writ served by a bailiff. The applicant must inform the court and the other party of these steps having been taken at least one week prior to the hearing date.6 As a matter of Dutch law, once summoned to be heard as a witness in accordance with the above, a prospective witness is under a legal duty to appear at the hearing and to give evidence.
There are exceptions to duty to give evidence. Some people may be relieved from giving evidence, for example the spouse of the witness or professionals entitled to professional privilege, such as a doctor or lawyer.7 However such a person would still have a duty to appear. Their privilege will then need to be invoked at the hearing.
Dutch law does not contain an explicit exception for foreign witnesses to appear and to give evidence. In the absence of case law from the Dutch Supreme Court, it is therefore possible that a foreign witness is also bound by this obligation as a matter of Dutch law.
Measures to compel a (foreign) witness to appear
If a Dutch resident who is summoned in accordance with the law does not appear at the hearing, the court can impose certain measures to effectively force or compel the witness to appear. In practice this means that the police are sent to pick up the witness and bring them to court.
This is somewhat different for non-Dutch residents. In our view, it follows from the principle of territoriality that the aforementioned measures to compel cannot be applied outside the Netherlands, as this would infringe on the sovereignty of the foreign country. A different question is whether foreign courts would recognise and give effect to an order of a Dutch court to the witness to appear in the Netherlands to give testimony and apply measures to this effect as available under foreign law.
It is possible that, under Dutch law, a distinction must be made between the question whether a witness domiciled outside the Netherlands is under an obligation to provide testimony, and the question whether they can be compelled to do so. Possibly, the absence of measures of compulsion does not preclude the existence of the legal obligation to appear and give testimony. Non-compliance with this obligation, without proper justification, could potentially expose a witness to the risk of liability vis-à-vis the applicant. It is uncertain whether domicile of the witness outside of the Netherlands will suffice to exonerate them from all risk of such liability.8
Request to hear a foreign witness abroad
Another possibility is to request the court to use communication technologies when taking the evidence, in particular videoconference and teleconference. The court can also be requested to ask the competent authority of the state where the witness resides to allow the hearing to take place before a designated official (eg a consular agent or a court officer) in the country of residence through either the EU Regulation on Evidence or the Hague Evidence Convention.
The Court of Justice of the EU (ECJ) has ruled that the EU Regulation on Evidence is a facilitating instrument, rather than an obligatory instrument. Therefore, it is a discretionary decision for a Dutch court whether or not it uses this instrument and issues a rogatory commission under the EU Regulation on Evidence.
In line with the ECJ’s case law on the EU Regulation on Evidence, Dutch lower courts also seem to predominantly view the Hague Evidence Convention as a facilitating instrument, rather than as an obligatory instrument. However, the Dutch Supreme Court has not yet ruled on this matter.
Dutch courts attach great weight to witnesses being heard as much as possible by one and the same judge in line with the so-called ‘concentration principle’. This may be a reason for a Dutch court not to use the instruments available under the EU Regulation on Evidence or the Hague Evidence Convention.
1. Article 166(3) in conjunction with Article 27 (1), Dutch Code of Civil Procedure (DCCP).
2. Article 188, DCCP
3. Article 189 in conjunction with Article 179(4), DCCP.
4. Article 189 in conjunction with Article 168, DCCP.
5. Article 190(2) in conjunction with Article 189 and Article 168, DCCP.
6. Article 170, DCCP.
7. Article 165 DCCP in conjunction with Article 189, DCCP.
8. Possible criminal liability falls outside the scope of this article.