Preliminary witness examination
It is not easy to choose whether or not to start a (often long-term) lawsuit. There are always process risks and a lot time and money is being spent. It is often difficult to estimate the process opportunities. This is especially the case in cases where little has been laid down in writing and the evidence is highly dependent on witness statements. In order to better estimate the probability of trial, the law offers the possibility to request a provisional witness before the procedure.
Preliminary witness examination before conducting proceedings
The Dutch Act provides that a preliminary witness examination may be ordered at the request of an interested party. The idea is that the facts which the applicant wishes to prove must be disputed and lead to a decision of the case.
Why a preliminary witness examination?
The potential benefit of a preliminary witness examination is that the applicant obtains clarity about certain facts in a case, which will allow him to better assess the chances of trial. In addition, a preliminary hearing of witnesses can be helpful by preventing the loss of evidence. This is the case, for example, when a procedure is foreseen to take a very long time.
Request for a preliminary witness examination
A request for a preliminary examination of witnesses must be requested from the court by means of a petition. The petition must include the claim, the facts that it wishes to prove and the details of the parties.
When assessing the request for a preliminary witness examination, the judge will check whether the facts alleged by the applicant are relevant and whether there is sufficient interest in holding the witness examination.
Rejection of a request for a preliminary witness examination
A number of grounds for rejection apply to a request for a preliminary witness examination. For example, a request to conduct a preliminary witness examination will be refused if the applicant misuses his powers or has no interest in the request. This could include the use of a preliminary witness examination, while there are also other legal remedies to estimate the chances of trial, or to gather evidence. Moreover, a preliminary witness examination should not serve as a so-called “fishing expedition”. There must be some degree of certainty about the applicant’s claim. A request can also be rejected when it crosses another procedure, such as criminal proceedings.