Het voorlopig getuigenverhoor (BPP nr. XVII) 2015/450:450 Contrary to the principles of due process

Het voorlopig getuigenverhoor (BPP nr. XVII) 2015/450

450 Contrary to the principles of due process

Documentgegevens:

Mr. E.F. Groot, datum 01-01-2015

Datum: 01-01-2015
Auteur: Mr. E.F. Groot
JCDI: JCDI:ADS457044:1
Vakgebied(en): Burgerlijk procesrecht / Bewijs

The principles of due process may prevent an application for holding a voorlopig getuigenverhoor from being granted in specific cases. It is difficult to provide a definition of the term (contrary to) the principles of due process. Firstly, the term comprises a multitude of standards. Secondly, the judgment whether something is or is not contrary to the principles of due process depends increasingly on the circumstances of the case, whereby general, social interests play a role in particular. Thirdly, decisions are (too) often substantiated with a mere reference to due process. Fourthly, the views held by society concerning the substance of due process are changing (par. 9.2).

The tendency to attach ever greater meaning to the efficient conduct of a case is important to the elaboration of the ground for rejection of being contrary to the principles of due process. The ground for rejection of being contrary to the principles of due process can be used, on the one hand, to ensure that the useful instrument of the voorlopig getuigenverhoor can be continued to be used in full and, on the other hand, to use the instrument of the voorlopig getuigenverhoor in an efficient manner.

The balancing of interests that must be performed as part of the assessment of the ground for rejection of being contrary to the principles of due process is not an ordinary balancing of interests; there will have to be a clear disproportionality between, on the one hand, the interest of the applicant in holding a voorlopig getuigenverhoor and, on the other hand, the interest of an efficient (expeditious, effective and most economical) conduct of the case. Efficiency comes to play a dominant role once the principal action has been initiated. The basis for rejection for being contrary to the principles of due process will often be the (advanced) stage of the principal action (par. 9.3 and 9.4).

The following factors, which are important but not intended to be exhaustive, can play a role in balancing of interests:

(a): the (advanced) stage of the principal action. The starting point is the granting of the voorlopig getuigenverhoor, also while a principal action is pending. However, holding a voorlopig getuigenverhoor is not always efficient when the principal action is already pending. The stage of the principal case plays a role in the balancing of interests of being contrary to the principles of due process if a decision is rendered at any time before the final procedural act. This factor has a special status in the balancing of interests; the other factors that play a role in the balancing of interests acquire a different meaning against the background of (the stage of) the pending principal action. The closer the principal action approaches the final procedural act, the more weight will be attributed to the factor of the stage of the principal action. On appeal, the advanced stage of the principal action combined with obvious doubts concerning the question whether it is useful to prove certain facts quickly leads to the conclusion that holding a voorlopig getuigenverhoor is inefficient and that formulating an order to produce evidence and hearing witnesses should be left to the court hearing the case on the merits. I do not consider the early stage of the principal action, namely before the position of the defendant in the principal action is known, to be a factor of the balancing of interests (par. 9.5.2).
(b): interference with procedural policy in the principal action. The voorlopig getuigenverhoor must not disrupt (the order of producing evidence in) the principal action. The failure of a voorlopig getuigenverhoor to fit in with a certain explicit (court-determined in the principal action) or implicit (on the basis of logic) order of producing evidence is therefore a factor in the balancing of interests on the basis of being contrary to the principles of due process (par. 9.5.3).
(c): other investigations have not yet ended. If evidence on the basis of other investigations is not yet available, but an investigation is ongoing at the time of the handling of the voorlopig getuigenverhoor, it may be useful for reasons of efficiency to await that investigation. It is of foremost importance in that connection whether there is sufficient overlap between the investigation and the voorlopig getuigenverhoor and secondly whether the investigation will be concluded within a reasonable term (par. 9.5.4).
(d): complexity of the principal action. If the case is substantively very complex or has an extensive body of facts and the principal action is pending, the complexity of the principal action may demand that the court hearing the case on the merits determines whether and what evidence is required (nr. 369).
(e): part of the relevant facts. This factor plays a role if the voorlopig getuigenverhoor only concerns part of the relevant facts in the principal action, while other issues must be decided in that principal action as well and it is likely that testimony concerning those other issuesmust be given (again) in the principal action (nr. 370).
(f): large number of witnesses. The wish to hear a large number of witnesses may be legitimate. Combined with other factors, such as the fact that the principal action is pending and the risk that (a number of) witnesses have to be heard again in the principal action, the large number of witnesses can lead to rejection of the application (nr. 371).
(g): a long time between the events in respect of which the witness has to be heard and the application for holding a voorlopig getuigenverhoor or slow conduct of the principal action without a sufficient justification (nr. 372).
(h): the applicant is able to prove the facts in another manner that is much less onerous and costly for the court, the other party and the witnesses. As the freedom of a (potential) party to the proceedings to determine its own litigation strategy and to choose its own evidence is of primary importance, the defendant has to argue convincingly that the applicant could have opted for a less onerous form of evidence with (nearly) the same result and this factor is rarely afforded a great deal of weight. The larger the difference between the burden of the voorlopig getuigenverhoor and the other form of evidence, the fewer additional factors are needed to cause a balancing of interests to turn out in favour of the defendant (nr. 373).
(i): an inconsistent procedural attitude on the part of the applicant in the principal action. An applicant who refused to produce any or very limited evidence of witnesses in the first instance of the principal action without providing a plausible explanation and who does wish to produce evidence by witnesses or hear a larger number of witnesses during the appeal proceedings against the principal action, may be confronted with the fact that this is held against it (nr. 374).