440 The purpose of the voorlopig getuigenverhoor; history; comparative law

The first purpose of the voorlopig getuigenverhoor is to preserve evidence of witnesses if there is a danger that the person of the witness will no longer be available once the moment of producing evidence in the principal action has come. It can be stated in a general sense that a voorlopig getuigenverhoor could nearly always be ordered in the Netherlands if there was a danger that evidence would be lost. The requirement of the danger of losing evidence lapsed in 1951 with respect to a voorlopig getuigenverhoor prior to a principal action and in 1988 with respect to a voorlopig getuigenverhoor during a principal action as well. The lapse of the danger of losing evidence provided the voorlopig getuigenverhoor with a second purpose: the collection of evidence of witnesses in order to be able to assess the chances of success in a principal action that is to be initiated later or that has already been initiated, to determine the basis for the future claim or to establish the identity of the other party. The latter function, the collection of evidence, is currently the main function of the voorlopig getuigenverhoor (ch. 2).

Different means of preserving evidence prior to the moment of producing evidence can be found in our neighbouring countries. In Germany, witnesses can be examined at the request of a party prior to and during civil proceedings if evidentiary problems may arise as a result of the loss of evidence or the complication of obtaining or using evidence (selbständige Beweisverfahren). The possibility of using the selbständige Beweisverfahren to obtain greater certainty about the facts, and thus increase the chances of a settlement, exists if the other party consents to the selbständige Beweisverfahren (par. 3.2). In England, parties can request a deposition order to examine a witness who will not be able to appear during the trial (for health reasons or in connection with obligations abroad) before the trial commences (par. 3.3). And finally, a mesure d’instruction in futurum can be ordered in France on the basis of Article 145 CPC in order to preserve facts that are relevant to the decision. The initial purpose of Article 145 CPC was only to prevent the loss of evidence, but Article 145 CPC is now also used to assess the possibilities for (successfully) submitting a claim. Although Article 145 CPC applies to various forms of evidence, including the examination of witnesses, Article 145 CPC is not used in practice for the examination of witnesses (par. 3.4).