KEI pilot ends: reset of digital litigation at Dutch courts, and new procedural rules

End of digital litigation

The pilot for digital litigation started on 1 September 2017 for claims with mandatory legal representation at the courts of Gelderland and Central Netherlands; see our previous blogs 'KEI: Digitalization of the justice system', 'The start of KEI: introduction of digital litigation' and 'Implementation of KEI legislation for Civil 1.0 procedures'. The pilot was originally supposed to be integrated in several phases, and digital litigation was planned to be integrated in all Dutch courts in 2019. This was cancelled, however, after the development of the digital system had been aborted due to budget overruns and uncertainty about whether it would result in a well-functioning system. The operation of the pilot scheme had led to differences in litigation and procedural rules at the courts of Gelderland and central Netherlands on one hand, and the rest of the Dutch courts on the other, since 1 September 2017.

The need to align the procedural rules for all Dutch courts as soon as possible has resulted in this new legislation, which puts an end to the pilot and provides for the same procedural rules for all Dutch courts.

The digital litigation for claims in cassation, in force since 1 March 2017, will remain unchanged.

Reset of digitalisation

The Council of the Judiciary has now adopted a  basic plan for civil law and administrative law to shape digitalisation in a different way (dubbed the "reset" of digitalisation) as a first step towards future legislation on digital litigation. This will require the same uniform procedural law to apply to all courts. Therefore, adjustments are needed to the procedural regulations. These are currently being worked on.

Introducing new procedural rules

The new legislation does not only withdraw the digitalisation pilot, but also introduces new procedural rules that aim to provide the judge with more control during the case and introduce more flexibility and options during an oral hearing. These rules already applied to the two district courts that were involved in the pilot, but as of 1 October 2019 they will apply to all Dutch district courts and courts of appeal. The new rules include the following:

• The judge can order an oral hearing during any stage of the proceedings. The parties will always have the opportunity to further clarify their arguments during an oral hearing. Therefore the right for a plea (pleidooi) being a separate procedural action comes to an end;
• During an oral hearing, the judge can discuss the course of the proceedings with the parties, and can order the parties to conduct additional procedural actions. This way judges will have more control, allowing for more customisation during a case.
• Making a recording of a hearing, whether a visual or sound recording, will become possible.

It is not yet clear when other parts of previous - as yet unimplemented - KEI legislation will be introduced, such as the merger of summons and applications proceedings into one type of proceeding (procesinleiding), and the intended tighter deadlines for procedural steps.