Introduction

Effective 1 October 2019, the Dutch Code of Civil Procedure (DCCP) will partly be revised. This revision is related to the failed digitalization of the Dutch judicial system: Program Quality and Innovation of Justice (in Dutch: Programma Kwaliteit en Innovatie Rechtspraak (KEI)). Only the district courts of Gelderland and Midden-Nederland have switched to the new digital system and accompanying procedural rules. This means there are different litigation systems for different Dutch courts. To harmonize the litigation systems in the Netherlands, an Emergency Act has been accepted by the Dutch government, with (mostly practical) consequences for Dutch litigation beginning 1 October 2019. This blog post explains a few concrete consequences of the Revised Dutch Code of Civil Procedure (Revised Code).

Consequences of the Revised Code

Current Dutch legal proceedings at first instance have a pronounced written aspect. As such, it often takes longer for an oral hearing (in Dutch: mondelinge behandeling) to be scheduled and witnesses or party-appointed experts to be heard. With the Revised Code, Dutch legal proceedings will have a stronger oral element, leaving more room for the court’s direction. Most of the consequences of the Revised Code therefore relate to oral hearings.

The Court’s Increased Directing Role

With the Revised Code, the court will be given more discretion to direct legal proceedings. The court may (also at the request of parties) in all cases and in every phase of the proceedings order an oral hearing in which the court can – inter alia – discuss continuation of the procedure. During oral hearings, the court may direct or order parties regarding the performance of further procedural acts. The Revised Code cancels the section on the basis of which parties were offered the possibility to request oral pleadings (current article 134 DCCP).

The court’s increased directing role is also demonstrated in its statutory authority to ask questions during the oral hearing. Parties may also ask each other questions, subject to the court’s authority to prevent certain questions from being answered.

The Revised Code states that, when parties settle during an oral hearing, the procedure ends. In addition, the court will be given more authority regarding settlement discussions during the oral hearing.

Furthermore, the Revised Act provides general rules concerning the record of the hearing (in Dutch: proces-verbaal). The court may, inter alia, determine that the written record of the oral hearing should be replaced by an image or sound recording made by the court or on behalf of the court.

Hearings of Witnesses and Party-Appointed Experts

With the court’s prior permission, witnesses and party experts may be heard during an oral hearing. This improves the (speed of the) procedure, because separate witness hearings do not need to be ordered by the court.

The judge may determine that a statement made by a party, witness, or expert will be included in its entirety in the hearing record. In so doing, the oral hearing is more fully represented than when the court only includes a few passages in the record (as is customary under the current DCCP).

Other Consequences

Given the Revised Act, procedural law applicable to the district courts of Gelderland and Midden-Nederland will be aligned with procedural law applicable to other Dutch courts. Furthermore, it will be formalized in statute that – in principle – procedural documents and other documents must be submitted to the court at least 10 days before the oral hearing.