On the next 1^st of January, the Dutch procedural rules relating to evidence will change considerably, when"the Simplification and Modernisation of Evidence Law Act" (Stb. 2024. 62) (in Dutch) enters into force.

The aim is to simplify and modernise the law of evidence in civil proceedings, hopefully improving the effectiveness and efficiency of proceedings. By supplementing the duty of truth and completeness, more emphasis will be put on collecting information and evidence prior to proceedings.

And perhaps the biggest change: the relatively passive judge is no more! This was already a trend in the court room, but is now regulated in the law. The judge can and will become actively involved in the legal battle, even discussing grounds and defences that are not yet part of the dispute. If you only invoke copyright, the judge may ask at the session why the claim is not based on slavish imitation. After studying the file, the judge can also call witnesses ex officio. All this, of course, within the limits of the legal battle, but it will still have far-reaching consequences. Also for the practical conduct of a case.

In addition, it will be easier to collect evidence. As of the 1^st of January, we can ask the court in a single petition formultiple types of evidence (e.g. a witness examination combined with an expert examination, or with access to information that only another person has).

The right to inspect or hand over documents is also extended. For example, the right of inspection can also apply to documents that are in the possession of a third party that is not a party to the dispute. Somehow it has something of the Anglo-Saxon discovery procedure. More on this later.

The precautionary seizure of evidence, which we have known in IP law for some time (to secure evidence), will now also apply to all civil cases.

In addition, a bailiff may draw up a 'record of observations' (an objective description of facts/circumstances found somewhere). Such an official report provides compelling evidence requiring the court to accept its contents as true.

We look forward to putting this into practice in proceedings pending from 1 January 2025!

Moïra Truijens