If you want to take legal action, in most cases you will have to present evidence. What if you don’t have any? The law can give you a hand then.
In Dutch civil procedural law, there is a clear main rule: the party invoking certain legal consequences also bears the burden of proving the facts underlying them. Evidence can be provided by any means, unless the law provides otherwise. In practice, this often means: he who proves, wins. But what if the crucial evidence is with the opposing party or a third party? Fortunately, the law provides a number of tools to obtain evidence even then.
Since January 1, 2025, the Law on Simplification and Modernization of Evidence has come into force. One of the most important instruments of that law is the renewed right of inspection, regulated in art. 194 Rv. This article replaces the old Art. 843a Rv, which has lapsed. Art. 194(1) of the Dutch Code of Civil Procedure stipulates that a party to a legal relationship is entitled, vis-à-vis the person who has certain information about that legal relationship, to inspect, take a copy of or extract from that information, provided he has a sufficient interest in doing so. The costs shall be borne by the requesting party.
Although art. 194 Rv largely corresponds to the old Art. 843a Rv, some substantial changes have been made that make the right of inspection more accessible. The main threshold reductions are as follows.
Under the old law, a right of inspection could not be granted if it could reasonably be assumed that the proper administration of justice would also be guaranteed without the provision of the requested information. The right of inspection was therefore a kind of last resort: only when other possibilities of proof had been exhausted did inspection come into the picture. Under the new law this threshold has been removed. Art. 194 Rv no longer contains this limitation. This means that the right of inspection can now be used as a full and independent means of proof, without first having to prove that there is no other way to obtain the evidence.
Under the old Art. 843a Rv, the Supreme Court had ruled that the existence of the legal relationship to which the inspection claim relates must be sufficiently plausible. The party requesting inspection in order to prove a suspected shortcoming or wrongful act had to substantiate facts and circumstances and substantiate with existing evidence that the shortcoming or wrongful act had actually occurred. This plausibility requirement no longer applies under the new law. This is an important relaxation: you no longer have to have evidence first in order to be allowed to request evidence.
The old Art. 843a Rv spoke of “certain records.” The new Art. 194 Rv speaks more broadly of “certain data.” As a result, more types of information are covered by the right of inspection, including digital data.
Whereas the old law required a “legitimate interest,” the new Art. 194 Rv speaks of “sufficient interest.” Although the difference seems subtle, the new wording is more consistent with a more low-key test.
The right of access is not unlimited. Art. 194 paragraph 2 Rv states that the person who has the data is not obliged to disclose if he has a right to privilege or if important reasons prevent him from doing so.
Is the other party not cooperating? Then Art. 195 Rv offers the possibility of asking the court to order the other party to provide access. In doing so, the judge determines the conditions, manner and time limit.
Is the data located with a third party? The court can also order that third party to provide inspection under Art. 195a Rv.
No proceedings started yet but already in need of evidence? Then article 196 Rv offers the possibility to have one or more preliminary evidence ordered prior to proceedings. Examples are a preliminary examination of witnesses, a preliminary expert opinion or a request for inspection. The court grants the request, unless one of the grounds for refusal mentioned in the law applies, such as insufficient certainty, insufficient interest, conflict with the due process, abuse of power or other important reasons.
Incidentally, an important difference with the old law is that preliminary evidence may no longer be requested separately if proceedings are already pending. If proceedings are already pending, requests for taking of evidence must be made in those ongoing proceedings.
In urgent cases, a request for inspection may also be made to the preliminary injunction court.
The most far-reaching tool is the prejudgment attachment of evidence. This allows evidence to be secured before it is lost or destroyed. Art. 205 Rv requires judicial leave from the preliminary relief judge for this purpose. The Supreme Court already accepted the possibility of evidence seizure in non-IE cases in 2013. Since January 1, 2025, the seizure of evidence is regulated by law in Art. 205-207 Rv. By the way, the leave does not give the right to inspect the secured data: this requires a separate request.
The law provides parties who lack evidence with a wide range of tools. The new law of evidence has strengthened the right of inspection in several respects: it is no longer a last resort, the plausibility requirement has been dropped, the concept of “records” is broader than the old “documents,” and the threshold of interest has been relaxed. In summary, a party has the following options:
➜ The right of inspection with respect to the opposing party
➜ The right of inspection with respect to third parties
➜ Provisional taking of evidence prior to proceedings
➜ Preservation of evidence (Art. 205 Rv)
In short, the lack of evidence need not be a reason to abandon proceedings. The law provides sufficient tools to gather evidence, even if it is located with the opposing party or a third party. And since Jan. 1, 2025, the bar for using those handles has been lower than ever.
