448 Abuse (Section 3:13(2) of the Dutch Civil Code): the purpose criterion

fishing expedition. Fishing expeditions are not in accordance with Dutch law, in which the basic principle applies that a party cannot simply automatically gain access to information that is not in its possession. A fishing expedition has two characteristics. Firstly, there is no direct connection between the information that is requested and a specific claim. An indication for the lack of a direct connection between the facts to be proved and the intended claim in the principal action exists if the body of facts in respect of which the witness has to give evidence is unlimited. Secondly, information is requested that is as yet entirely unknown to the party that seeks the information. The court usually considers the characteristics jointly when performing its assessment (par. 8.4.3).

a form of evidence other than a witness examination is appropriate. Contrariness to the purpose of the voorlopig getuigenverhoor exists if only written documents can provide the desired information. A request for a voorlopig getuigenverhoor that is intended to hear experts in order to obtain an expert opinion, which is characterised by the fact that knowledge and/or experience is added to the observed facts, is also contrary to the purpose of the voorlopig getuigenverhoor; the personal, sensory perception of a witness is central to a witness examination. I consider that a voorlopig getuigenverhoor is possible if the applicant wishes to hear an expert concerning the facts observed by the expert within the context of his investigation and in respect of which he reported or concerning the manner in which he performed his investigation. Witnesses can also give evidence concerning the existence and content of internal reports that are not available to the public (par. 8.4.4).

the applicant aims to establish facts for the purpose of a different principal action. Contrariness to the purpose of the voorlopig getuigenverhoor exists if (i) the facts are not collected in a principal action between the applicant and the defendant and can exist if (ii) there are clear indications that a voorlopig getuigenverhoor is requested within the context of a principal action other than the principal action referred to in the application, (ii) or (iii) it concerns a tangle of proceedings and it is not clear for which proceedings the voorlopig getuigenverhoor is requested (par. 8.4.5).

the principal action is premature. An applicant who initiates the principal action while the voorlopig getuigenverhoor was requested to determine the basis for the claim in the principal action can, in principle, change his claim or change or increase the grounds thereof until a judgment has been rendered in the principal action; it does not abuse the voorlopig getuigenverhoor. An applicant that requests a voorlopig getuigenverhoor in order to establish the identity of the other party cannot change other parties in the principal action if it becomes clear that it has selected the wrong party; it depends on the circumstances of the case if the applicant abuses the voorlopig getuigenverhoor. It doesn’t abuse the voorlopig getuigenverhoor when it can give an acceptable explanation for initiating the principal action against a possibly wrong party and when a new principal action can be filed against the correct party (par. 8.4.6).

the application is used as a means of protest or as a means of exerting pressure. The mere circumstance that the party that requests a voorlopig getuigenverhoor seeks publicity or otherwise exerts pressure by requesting the voorlopig getuigenverhoor is insufficient for assuming abuse on the basis of the purpose criterion. This only applies if it is obvious that the permissible interests alone would not have induced a party to exercise the authority (par. 8.4.7).