443 Grounds for rejection

Establishing the truth and efficiency have adopted key positions in Dutch civil proceedings in a relatively short period of time. There is a direct connection between establishing the truth and efficiency: if parties provide full disclosure at the earliest possible stage and are aware of the (evidence of the) relevant facts, such will promote the proper, expeditious and efficient conduct of civil proceedings. (The development towards) establishing the facts at an early stage for the purpose of settlements and the more efficient conduct of a case is also visible in Germany, England and France. The instrument of the voorlopig getuigenverhoor is a useful tool and fits well with the starting points of establishing the truth and efficiency in civil proceedings, because the facts that can or should be proved by witnesses can be established at an early stage, which means that later proceedings can be avoided or conducted more efficiently. Moreover, there is no sufficient alternative for the voorlopig getuigenverhoor, although it would be possible to develop alternatives. Think in this connection of an entirely oral examination of witnesses by a court investigator following the English example or increasing the possibilities for exchanging written witness testimony. The voorlopig getuigenverhoor also has its disadvantages. It is time-consuming and costly, as the court first has to handle and decide on the application for holding the voorlopig getuigenverhoor and then has to hear to witnesses of the applicant and the other party. In addition, the instrument is liable to abuse, because it can be used to obtain information that is valuable to the applicant without the applicant actually considering initiating proceedings against its other party (par. 1.1 and 1.2).

The possibilities for rejecting an application for holding a voorlopig getuigenverhoor were expanded by the Supreme Court (the highest court) in three rulings rendered in 2002, 2003 and 2005. An application can be rejected on the basis of four grounds: insufficient interest, abuse of authority, being contrary to the principles of due process and another, compelling interest (par. 6.2 and 6.3). All grounds are open standards that limit the authority to hold a voorlopig getuigenverhoor that exists in abstracto. It is not clear, however, where those limits lie. This book therefore provides a further demarcation of the grounds. Firstly, the starting point in that connection remains that in principle an application must be granted despite the expansion of the possibilities for rejection; the court can only reject an application if there exist compelling objections against granting the application. Secondly, a balance is sought in that connection between, on the one hand, the preservation of the useful functions of the voorlopig getuigenverhoor and, on the other hand, an efficient use of the voorlopig getuigenverhoor. Thirdly, the interests of the parties are taken into account when elaborating the grounds, but factors such as the juridical views and social views (of citizens, the judiciary and the legal profession) that exist in the Netherlands and practical objections are also taken into account. And finally, it must always first be assessed whether the applicant has sufficient interest in its application. If so, the three other grounds for rejection come into play. Abuse is subject to the most severe obligation to furnish facts and the grounds of contrary to the principle of due process and another compelling object is subject less severe obligation to furnish facts (par. 6.4 and 6.5). When discussing the grounds for rejection, it is assumed that the voorlopig getuigenverhoor is used to gather evidence of witnesses. Following discussion of the grounds for rejection, attention is devoted to the voorlopig getuigenverhoor that is used as an instrument for preserving evidence.