Litigation in the Netherlands is very expensive and being right and being proven right are two different things. It is difficult to estimate in advance what the chances of success of a legal procedure are.
The case may seem legally simple, but it often depends on the evidence of facts and circumstances that is available. Gathering evidence in advance can help you decide whether or not to go to court. A preliminary witness hearing and preliminary expert report are two excellent ways to gather evidence before a dispute is submitted to the judge.
Preliminary witness examination:
During a preliminary witness hearing, witnesses are heard under oath before the full extent of the actual dispute is submitted to the judge. The preliminary witness examination is intended to collect witness evidence that may be important for the success of a possible lawsuit. The preliminary witness examination must be requested by a lawyer who submits a petition to the court. The other party can defend against that request. The court will then decide whether the preliminary witness examination will take place.
A preliminary witness hearing is often used to uncover the facts and circumstances of the dispute, or to determine which witnesses should be heard at the actual trial. The preliminary witness examination is an important tool in assessing the chance of success of the eventual lawsuit. The preliminary witness examination is not a replacement for the trial, but a way to collect witness evidence in advance and on that basis to estimate the chances.
Preliminary expert report:
The preliminary expert report is a comparable way to collect evidence in the run-up to a possible lawsuit. In this procedure, an independent expert is appointed by the court to prepare a report on a specific technical issue that divides the parties and is important for the outcome of a possible lawsuit. Disputes about horses often involve veterinary issues and, for example, an independent equine veterinarian with specific expertise is often appointed as an expert to draw up a preliminary expert report.
A request for a preliminary expert report must be submitted to a court by a lawyer, just like the request for a preliminary witness hearing. The other party can also put up a defense here. The court assesses the request and if the request is justified, the court grants the request and appoints an expert and often also formulates the questions to be answered by the expert.
The preliminary expert report is often useful in disputes where technical or scientific knowledge is required to understand the dispute and to estimate the chances of success of a possible lawsuit. This includes disputes about the state of health of a horse during delivery at the time of sale, or disputes about professional errors by professional service providers, or disputes about construction aspects during the realization of a structure.
Grant request unless
The court has no discretionary power when assessing a request for provisional witness hearing or provisional expert report. The court must grant the request unless there is a clear reason not to do so. The grounds for rejecting such a request are very limited. According to settled case law, a request can only be rejected if the request is abused, or because the request is contrary to good procedural order, if the request is met by another objection that is considered serious, or if the applicant has insufficient interest in having the request granted.
The preliminary witness examination and the preliminary expert report help parties in gathering their evidence and preparing their cases. Both the preliminary witness examination and the preliminary expert report are very useful ways to estimate in advance the eventual chances when a dispute is possibly brought to court. These are also ways to avoid any unnecessary legal costs and lawyer costs.
Wibe Reddingius is a lawyer and partner at Langelaar Klinkhamer Advocaten. He specializes in the areas of corporate law, contract law and (international) commercial law. In addition, Wibe is a specialist in the field of equestrian law and as such he is a lawyer for well-known riders, breeders, traders and equestrian trade organizations. Questions regarding this blog post? Contact Wibe by emailing email@example.com.