Preliminary examination of witnesses: how it works in your favor

Imagine this: you are a business owner and are about to file a lawsuit against a former business partner for breach of contract. However, a key witness, who was closely involved in the negotiations, is considering leaving the company soon and working in another industry. If this witness later becomes unwilling or unavailable to testify, this can significantly complicate your case. In such a situation, a preliminary witness examination offers a necessary solution. It allows you to capture crucial witness testimony before it may be lost. Also, a better assessment of the feasibility of proceedings can be made after a preliminary witness examination. This makes it an efficient way to gather more information. In this article, I will elaborate on the possibilities and requirements of a preliminary examination of witnesses.

Reasons for preliminary examination of witnesses

The preliminary examination of witnesses can be found in Article 186 et seq. of the Code of Legal Procedure. It stipulates that an interested party may request a preliminary witness examination in order to obtain evidence from witnesses.

Why conduct a preliminary witness examination and not simply initiate proceedings? A preliminary examination of witnesses helps the applicant to get more clarity on certain facts before a trial begins. This helps to better assess the likelihood of success in the case and to determine against whom the proceedings should be directed. Indeed, it may follow from a preliminary witness examination that another party may be better and more easily held liable. In addition, it may be used to prevent the loss of important evidence, especially in complex and long-running cases. For example, witnesses may not be able to provide evidence for long because of illnesses.

Requirements and grounds for rejection of preliminary examination of witnesses

In order to conduct a preliminary examination of witnesses, an application will have to be made to the judge who would presumably have jurisdiction of the case if these “proceedings on the merits” were initiated. In doing so, the petition must state the following:

(a) The nature and course of the claim;

(b) The facts or rights sought to be proved;

(c) The names and domiciles of the persons to be examined as witnesses; and

(d) The name and residence of the opposing party or reasons why the opposing party is unknown.

In general, the preliminary examination of witnesses can be viewed as a fairly low-key legal remedy. The court may not reject a request for preliminary examination of witnesses entirely at its discretion. Therefore, there are also some limited grounds for rejection:

(a) Insufficient interest;

(b) Misuse of discretion;

(c) Conflict with due process; and/or

(d) Some other weighty judgment.

Insufficient interest

A preliminary examination of witnesses can be rejected on the grounds of insufficient interest by several factual bases. For example, a preliminary examination of witnesses is not useful if the witnesses’ testimony is unlikely to contribute to the outcome of the main case. It is also possible that a claim for the main case is without chance or does not exist (anymore). In such a case, it is likely that the court will do unnecessary work, and for this reason the request for a preliminary witness examination may be rejected for lack of sufficient interest.

Abuse of jurisdiction

Abuse of discretion has several forms. One of these forms means that it is clear that a party’s sole intention is to prejudice the other party. This is also known as the “prejudice criterion.” In practice, however, this criterion for the preliminary examination of witnesses usually does not play an important role because the purpose of conducting a preliminary examination is clear. That the prejudice criterion is met must be proven by the defendant and not the applicant.

In addition, there is also the purpose criterion. This occurs when the means, the preliminary witness examination, is used for a purpose other than that for which it is intended. An important part of this is, for example, the so-called “fishing expedition.” This involves outright “fishing” for information and not a targeted search for information in the hope of finding something detrimental to the opposing party. There must be a concrete connection between the requested information and a concrete claim.

Finally, there is also the form that disproportionality, also known as the disproportionality criterion, exists when the interest in using a particular power does not outweigh the disadvantage caused by it, making it unreasonable to exercise that power. For example, a landlord may not evict his tenant for a minor violation of the lease, even though the landlord would have the right to do so.

Conflict with due process

It is difficult to define exactly what is meant by “(contrary to) the due process of law.” This is because many different rules and standards are covered by this term. Moreover, the assessment of whether there is a violation of the due process order depends very much on the specific circumstances of the case, where broader societal interests are also important. In addition, views in society on what exactly constitutes a good procedural order are constantly changing.

As a guideline, there must be a clear disproportionality between the applicant’s interest in holding a preliminary witness examination and the interest of efficient, expeditious and cost-effective litigation.

Other weighty judgment

The last possible ground for rejection can be seen as a residual category. Consequently, not much literature and case law can be found about it. The interpretation of this ground depends heavily on the circumstances of the case. It concerns circumstances that do not fall under the aforementioned grounds for rejection, but are still so important that a request must be rejected.

Examples may include: (i) an announced invocation of a right to privilege/non-disclosure, (ii) an evidentiary agreement, (iii) the witness is unable to give evidence on medical grounds, (iv) the (emotional) burden on the witness or (v) the safety of the witness or others is at risk.

Conclusion

Preliminary examination of witnesses can be a good means of obtaining further clarification of various facts. Many times the Petitioner does not know exactly what factual acts the Respondent performed and who was (was) actually responsible. This is where a preliminary witness examination can provide more clarification. A preliminary witness examination can also ensure that evidence is recorded before it is “too late” and the evidence is lost.

If you have a conflict and are exploring the possibilities of a preliminary witness examination, I would be happy to help you with this!

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