On 1 January 2025, a series of amendments to the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering)(hereinafter:''DCCP'') will enter into force. The Simplification and Modernisation of Evidence Law Act (Wet vereenvoudiging en modernisering bewijsrecht) (hereinafter also referred to as the 'Act') was adopted with the aim of making civil proceedings in the Netherlands more efficient and accessible.
This blog discusses three notable innovations in the Act: first, the new inspection right (inzagerecht), second, a modernisation of the right to privilege (verschoningsrecht), and third, the clarification of the judge's active role.
A new right of inspection
Under the current article 843a DCCP, a party can request inspection (or copies) of documents relating to a legal relationship in which he is a party, for instance in the context of intended negotiations or the provision of evidence in (possible) proceedings. From 1 January 2025, the right of inspection will be transferred to the Evidence section of DCCP: the current article 843a DCCP will be replaced by articles 194, 195 and 195a DCCP.
The current right of inspection is described by the legislator as a last resort. Under the new Act, the right of inspection will be put on a more equal footing with other evidence. Under the current right of inspection, a party in possession of the documents (from 1 January 2025: data) whose inspection is demanded may raise the defence that the inspection demanded is unnecessary for the proper administration of justice, for example because the documents in question can also be obtained by other means. As a result of the Act, this defence loses its force. With the introduction of the new Act, it will become easier to obtain access to another party's records. This will make the right of inspection an accessible alternative to other proceedings of evidence rather than a special remedy.
The legislator intends to achieve this goal by making some amendments to the DCCP. The old requirement of legitimate interest in inspection is replaced by the requirement of sufficient interest. The current right of inspection requires a direct and concrete legally relevant interest. Under the new Act, a sufficient interest exists if a party has made it plausible that it has an interest in inspecting certain data. In the case of a sufficient interest, the party in possession of the data can prevent the other party from providing the data for inspection on the basis of two arguments. There may be compelling reasons to oppose inspection, or the right to privilege may apply - more on that later. The legislator seems to have loosened the condition relating to required interest and put it more on a par with the criteria for other evidence, but the actual effect of the new Act in practice remains to be seen.
In addition, judicial intervention is not formally required. The new Act states that a party seeking information from the other party is entitled to it if it has sufficient interest. If the other party - this may also be a third party who is not a party to the legal relationship to which the data relates - refuses to cooperate, a judge may be called upon to intervene and order the other party to provide access. In practice, this is likely to be of little consequence. If a party refuses to provide information due to insufficient interest on the opposing party's side, a court will always have to render judgment.
Modern right to privilege
A second important change concerns the modernisation of the right to privilege. The right to privilege is the right of certain persons to refuse to act as witnesses or answer certain questions as witnesses. The current ('old') right of privilege covers a party's spouse and partner. The legislator decided to add the term life companion (levensgezel) to the privileged categories of witnesses. This follows the development in criminal law, where a life companion has recently been included in the right to privilege.
The legislator provides clear criteria for determining whether someone qualifies as a life companion. The most decisive criterion is whether the parties involved assume a close connection of fate. In addition, the assessment considers whether there is a joint household, the duration of the joint household and whether there is a relationship of an affective nature. Allowing life companions to be excused from testifying is an inclusive choice that makes civil procedural law fairer. In practice, courts will have to assess whether there is a life companion on the basis of the facts. This leaves much room for interpretation and nuance, so further clarification by the judiciary is to be expected.
Clarification of the judge's active role
In practice, judges have an active role in the process of establishing the truth during civil proceedings. The Act codifies this role. In fact, the new Section 24(2) DCCP explicitly states that this is an undeniable part of the civil judge's duty. The purpose of civil proceedings is to find out the substantive truth, or what really happened. If one of the parties has significantly less legal knowledge than the other party, the judge should actively intervene to create a level playing field and in doing so promote the discovery of the truth. The Act thus continues the development of the judge as process director.
The Simplification and Modernization of Evidence Law Act will apply to proceedings initiated after its entry into force on 1 January 2025.
With thanks to paralegal Simon Struijk, co-author of this article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
