The testimony of the party witness in the new law of evidence

During the coming New Year, not only doughnuts and fireworks await us, but also important changes in the Code of Civil Procedure. As of that moment, the Law on Simplification and Modernization of the Law of Evidence will enter into force. This law aims to make civil proceedings more efficient and effective. This means that new provisions will be added to the Code of Civil Procedure (hereinafter Rv), while provisions will also be removed. In the coming time we will discuss more about the most important changes. In this article, I will specifically address the change around the party witness, which is laid out in Article 164 Rv.

What is a party witness?

A party can be heard not only as a party, but also as a witness. There is then the so-called party witness. Pursuant to article 164 paragraph 2 Rv, the testimony of a party-witness has, in principle, limited probative value if this party-witness gives testimony about facts that she has to prove (she bears the evidentiary risk for these facts). Indeed, a party witness’ testimony about facts for which she bears the evidentiary risk cannot provide evidence in her favor. This is different from normal witness testimony, which in principle has free probative value. The evaluation and valuation of this normal witness statement is left to the judge’s free judgment.

The party witness in today’s Law

Thus, a statement by a party witness about facts for which she bears the evidentiary risk cannot provide evidence in favor of that party witness. There is only one exception to this. If the statement serves to supplement incomplete evidence, the statement can indeed provide evidence in favor of this party witness. This additional evidence must include both essential and strength points to make the testimony of the party witness credible.

In practice, therefore, the probative value of the party witness’ testimony on facts for which she bears the evidentiary risk is limited. Therefore, in cases where there is simply no additional evidence, that party has a major evidentiary problem.

To get around the provision, statements of the party witness are introduced into the proceedings in writing. That way, the limitation on the probative value of article 162 paragraph 2 Rv does not apply. The assessment and valuation of this mere witness statement is again left to the judge’s free judgment. The fact that the statement is merely written and comes from a party to the proceedings then often weighs heavily.

The new law of evidence

Consequently, the provision had long been criticized. Moreover, there was criticism of the restriction in judicial freedom of assessment and valuation of this evidence. Therefore, this provision will disappear on January 1, 2025. From then on, it will be entirely up to the judge to assess and value the testimony of a party witness about facts for which she bears the evidentiary risk. The judge may consider a fact proven in that party’s favor on the basis of a party witness’ testimony.

How these new rules will work out in practice remains unclear for now. We expect more clarity once the first hearings have taken place. We will of course inform you of any important developments.

Advice

This is just one of the changes from the Evidence Law Simplification and Modernization Act. Do you have a question about this change, and what it means for you? Or do you have another question about this new law? Then contact one of our lawyers by email, phone or fill in the contact form for a no-obligation initial consultation. We will be happy to think along with you.