What will change as a result of the Evidence Law Simplification and Modernization Act (Wvmb)?

On January 1, 2025, the Simplification and Modernization of Evidence Act ("Wvmb") entered into force. DigiDispute Disputes Committee also applies the statutory law of evidence (Article 6 of the Rules of Procedure). A good knowledge of the legal law of evidence can mean the difference between winning and losing in a dispute. Therefore, Max Hazekamp, author of the pocket book Civil Evidence Law in a Nutshell and associated with DigiDispuut as a binding advisor, explains the main changes of the legal evidence law. Many of you will be familiar with the adages "he who demands, proves" and "he who asserts, must prove." Those adages need some nuance. The party claiming a particular legal effect ("who claims") must state (and, if necessary, prove) the facts that can support that legal effect. Burden of proof only arises if the facts alleged by one party have been sufficiently contested by the other party with sufficient grounds. For if the facts asserted by one party have not been disputed by the other party, or have not been sufficiently substantiated, the court will, in principle, regard them as established. If the party bearing the burden of proof has met that burden of proof, then the other party will have to provide rebuttal evidence - to prevent the legal effect intended by the first party from being assumed.

The judge is given a more active role as truth finder

The judge will decide on the basis of the facts alleged by the parties. And, if burden of proof is at issue, on the basis of the (counter)evidence presented. In principle, the judge has a passive role. This division of duties and responsibilities between the parties and the judge remains virtually unchanged. However, the judge will have a more active role as truth finder than is currently the case. But even under the Wvmb, the judge may not step outside the party debate. The legislator wants to prevent the judge's decision from deviating from the material truth or being the result of legal ignorance on the part of one of the parties.

Calling witnesses

Currently, the judge can order a witness examination ex officio, or at the request of one of the parties, but cannot appoint persons as witnesses ex officio. Under the Wvmb, the judge will be able to call persons designated by himself as witnesses. However, this does not give the judge a free pass: the judge may only designate and call persons as witnesses who have been named by one of the parties or have already made a written statement during the proceedings.

Duty to inspect

The duty to exhibit (the duty to inspect) is also going to change. The duty to inspect means that anyone who has an interest in doing so can demand to see or copy certain documents that another party has. At present, an exhibiting party's claim may fail because of the fact that due legal process is also possible without the provision of inspection or copying of certain documents. Under the Wvmb, the disclosure obligation will no longer be a last resort that can only be used if other forms of evidence are insufficient. The possibility of relying on the duty to exhibit pending legal proceedings will be expressly included in the law. As long as there is no legal right to privilege or important reasons, the party against whom the duty to exhibit has been invoked must comply. By doing so, the legislator wants to ensure that the information position of all litigants is equal to the greatest extent possible.

Right of evidence

Another change relates to the probative value of party testimony. Under the current statutory law of evidence, a party's testimony cannot prove the facts to be proved in favor of the party bearing the burden of proof. Unless that party testimony serves to supplement incomplete evidence. With the entry into force of the Wvmb, a party's testimony will have free probative value. This means that the judge himself may decide what value should be attached to the party testimony. The change referred to here is not revolutionary, because the judge will attach little value to statements of a party who has an interest in the outcome of the proceedings. With other authors, I believe that the Wvmb will bring about few changes from the current statutory law of evidence. The judge's role will remain largely the same, while the parties' procedural obligations will be tightened rather than changed.

This blog was written by Max Hazekamp