442 Procedure

The proceedings for applying for a voorlopig getuigenverhoor are independent application proceedings whereby the applicant requests the court to order a voorlopig getuigenverhoor (par. 5.1). The law imposes several limitations on the possibility of requesting a voorlopig getuigenverhoor. Firstly, a voorlopig getuigenverhoor can only be ordered if the law permits evidence produced by means of witnesses (par. 5.2.2). Secondly, a voorlopig getuigenverhoor can only be ordered within the context of civil summons proceedings or application proceedings. It is not possible to order a voorlopig getuigenverhoor for the purpose of administrative or criminal proceedings (par. 4.3 and 5.2.3).

A voorlopig getuigenverhoor may be requested by any interested party before the case is pending. Only the parties can request a voorlopig getuigenverhoor once the principal action is pending (par. 5.4). In addition to the general requirements that apply to an application, there are several additional requirements that apply to applications requesting that a voorlopig getuigenverhoor be ordered. Firstly, the request must include the nature and amount of the claim in the principal action, so that the court can assess whether the voorlopig getuigenverhoor can be held before it. Secondly, the facts or rights the applicant wishes to prove must be described in the application, so that the court and the other party are able to assess whether a ground for rejection applies or whether the facts and rights are relevant, disputed and sufficiently specific. Thirdly, the names and the places of residence of the persons the applicant wishes to hear as witnesses must be stated. Fourthly, the name and place of residence of the other party must be included in the application so that the interests of the other party can be protected (par. 5.5).

Following submission of the application, the applicant and the other party must in principle be summoned for the handling of the application. The court is required to render a substantiated decision following the handling of the application. The court may grant or reject the application in whole or in part. The court indicates in its decision granting the application in respect of which facts the applicant will be allowed to have witnesses heard. The decision also includes several practical decisions concerning the witness examination to be held (par. 5.6 and 5.7).

An appeal may be lodged against a negative decision; there is no possibility of an appeal if the application is granted. This asymmetrical prohibition on appeals can be broken on the basis of three grounds: if Section 186 of the Dutch Code of Civil Procedure was applied wrongly or was wrongly not applied and in the event essential formalities were not observed. For instance, an interested party that was not heard concerning the application to hold a voorlopig getuigenverhoor has the right to submit an appeal against the decision granting the application on the ground of violation of the principle of audi alteram partem (par. 5.8).

The delegated judge designated by the court is competent to hear the witnesses. In principle, the voorlopig getuigenverhoor progresses according to the same rules as the normal examination of witnesses. After the witnesses of the applicant have been heard, the other party is in principle automatically allowed to produce evidence to the contrary. Following the (counter) examination of witnesses, a personal appearance of the parties may be held at the request of the parties in order to discuss the further handling of the case and possibly to reach a full or partial settlement (par. 5.11, 5.12 and 5.13).

If all parties were present or represented at the examination, the witness testimony made during a voorlopig getuigenverhoor has the same (free) evidentiary value as that made in the customary manner during pending proceedings (par. 5.14).