As of 1 January 2025, the new Act on the Simplification and Modernisation of Evidence Law has come into force. This has led to several amendments to the Dutch Code of Civil Procedure. Lawyer Mathijs van Riet explains the most relevant changes.

Burden of Proof and Litigation Strategy

Evidence is one of the most important aspects of civil procedural law. The question of which party bears the burden of proof – and therefore the risk associated with it – can significantly influence litigation strategy. For instance, initiating legal proceedings too hastily may inadvertently place the burden of proof and the associated risks on the initiating party.
Consider the example of a seller of goods in dispute with a buyer over whether the delivered goods meet the agreed standards. If the seller initiates the proceedings, they will need to prove that the goods are compliant. Conversely, if the buyer initiates the proceedings, they will need to prove that the goods are non-compliant.

Starting a civil procedure prematurely can thus affect the allocation of the burden of proof and, consequently, the outcome of the case. It is therefore crucial, before initiating proceedings, to thoroughly map out which facts and arguments are relevant to the court’s decision and to determine which party carries the evidentiary risk for these facts and arguments.

New Act Simplifies Evidence Gathering Before Civil Proceedings

The new Act makes it easier to gather evidence prior to initiating civil proceedings. For example, it is now possible to combine various methods of evidence collection, such as a request for witness examination alongside a request for the appointment of a court expert.

Requesting Access to Information from Third Parties

It is not uncommon for a party to lack access to critical information or documents, while a third party does possess this information. For instance, a party enters into a contract with a seller for the delivery of goods. The seller fails to deliver, and the buyer wishes to hold both the seller and the seller’s director liable.

Under the old law, the buyer could only request information from the director if they could demonstrate a legal relationship with the director, which required showing that the director could be held personally and seriously at fault – a challenging task in most cases.

Under the new law, the requirement of a legal relationship has been removed. It is now possible to request information from any third party, provided the requester has a sufficient interest in obtaining it.

A More Active Role for Judges

The role of judges has also changed as of 1 January 2025. The new Act stipulates that judges now have a more active role with regard to evidence. Judges are now allowed, on their own initiative, to discuss with the parties the foundations of their claims, requests, or defences. In practice, many judges already took this approach before the new Act came into force, aiming to identify the core issues of the dispute together with the parties.

Refusing a Judge’s Request to Provide Information

Judges may order parties to substantiate certain assertions with additional information or documents. This was already the case under the old law. What is new, however, is that judges can now refer the case to another judge to determine whether a party has a valid reason for refusing to comply with such an order. This change ensures that the judge who issued the order does not have to view the relevant information themselves and is therefore not unconsciously influenced by it.

Questions About Evidence Law or Considering Civil Proceedings?

Do you have questions about evidence law, are you involved in a civil procedure, or are you planning to initiate one? Lawyer Mathijs van Riet is happy to assist you.