Preliminary examination of witnesses
You do not commence legal proceedings without reasons. You will have to balance the interest of the dispute against the time and costs, and the possible outcome. The chance of the claim being allowed plays a major part in such considerations. To make a better estimate of the chances of success in a lawsuit, the questioning of witnesses or experts with regard to certain facts may come in useful. This is why the law gives the opportunity to conduct a preliminary examination of witnesses before proceedings have commenced.
Evidence by calling witnesses
Article 166 of the Dutch Code of Civil Procedure stipulates that in cases for which evidence provided by witnesses is allowed, a preliminary examination of witnesses may immediately be ordered on the request of any interested party. Starting point is that the facts the person making the request wants to prove have to be contested and may result in a decision of the case. A preliminary examination of witnesses can also be ordered if proceedings are already before the court.
Objective of a preliminary examination of witnesses
A preliminary examination of witnesses may therefore enable the person making the request to obtain clarity on certain facts before he initiates proceedings. This will not only allow a better estimate of the chances of success in a lawsuit, but also a better insight into what party the proceedings should be brought against. Moreover, a preliminary examination of witnesses may serve to prevent evidence from being lost, for example in complex proceedings that are expected to take up a lot of time.
Contents of the petition
The petition for conducting a preliminary examination of witnesses must be submitted to the court that probably will have jurisdiction to judge on this case, if it is brought. The petition contains a description of the claim, the facts (or rights) that are to be proven, and the names and places of residence of the witnesses and the other party to the dispute. The petition must be clear and sufficiently concrete. As a rule, the petition is dealt with in a hearing to which the other is also summoned to appear, before a judgment is given.
Criteria for allowing a request
When allowing a request for a preliminary examination of witnesses, the court will have to ascertain whether the facts stated in the petition are relevant. When granting a request, the court is not free to decide as it sees fit: if the request meets the requirements, the applicant is in principle entitled to the preliminary examination of witnesses requested. There are, however, a number of grounds for refusal.
Grounds for refusal of a preliminary examination of witnesses
A request that meets the requirements is nevertheless rejected if there is a ground for refusal. These grounds follow from established case law. A request is rejected by the court if the person making the request misuses his authority or does not have any interest in the request. A request will also be rejected if it is contrary to the process of law or any other important interest.
No fishing expedition
A preliminary examination of witnesses is not intended for haphazardly obtaining information on the other party while it is not clear beforehand whether or not there is any claim. This would result in a so-called fishing expedition, something for which the (preliminary) examination of witnesses is not intended. A request can also be rejected if it turns out that the examination is only requested for the purpose of obtaining facts for proceedings that are not pending at the civil court (e.g. criminal proceedings).