In a landmark judgment, the Dutch Supreme Court ruled on 21 April 2023 that Dutch courts must make case details publicly accessible. This concerns details such as the parties involved, the status of the proceedings, hearing dates and any judgments issued. While the case file will not be public, it will be easier for interested parties to learn about the hearing and observe the arguments made there. With this ruling, companies will be able to better monitor relevant litigation in the Netherlands.
Currently in the Netherlands, it is hard for third parties to learn about pending litigation and to obtain details on the status of proceedings. Lawyers admitted to the Dutch bar can search the official case registers if they have a case number. Courts rarely provide case details by phone to parties who are not the litigants or their representatives. Exceptions are only made for the press. There are some ways to monitor pending litigation, but they are case specific (for example, preliminary referrals to the Supreme Court) or highly impractical.
All of this will change with the Supreme Court's judgment, prompted by Advocate General Wesseling-Van Gent in a Supreme Court appeal in the interest of the law. The Advocate General argued that the current practice is contrary to the fundamental principle of public administration of justice, a right that is enshrined in Article 6 of the European Convention of Human Rights. The Advocate General argued that a hearing cannot be considered public if third parties are unable to find out if and when a hearing will take place.
Publication of case details
The Supreme Court agreed with the Advocate General. In its ruling, it stated that Dutch courts must make case details publicly accessible, subject to limited exceptions.
First, courts must provide information about the time and place of public hearings; the cases that will be heard; and the names of presiding judges. Courts may, for example, do so by publishing a hearing agenda on their websites. Personal details may be anonymised in the agenda to safeguard privacy. If the court is asked by a member of the public for the time and place of a public hearing in a specific case, the court must enable that person to attend the hearing.
Second, the Supreme Court noted that judgments are issued in public, which means that anyone should be able request a copy of a judgment. People may, for example, ask a court for all judgments in cases involving a specific party.
Finally, the Supreme Court ruled that courts must make an overview of pending cases publicly available. The overview must include the case number, the parties involved, and the status of the proceedings. Again, personal details may be anonymised in the interest of privacy. In addition, lawyers and other involved individuals must be able to know if a case is pending between certain parties.
The Supreme Court explicitly notes that courts do not have to provide other types of information, including information for cases which have ended.
How will this change litigation in the Netherlands?
Companies will now be better able to monitor pending litigation in the Netherlands. The reasons for wanting to monitor certain cases vary: interested parties may want to stay updated on cases regarding legal or factual questions that are relevant for their business or for litigation the company is involved in. Companies may also be interested in litigation pending against competitors; for example, in patent proceedings. Company lawyers may want to attend oral hearings related to specific cases, or companies may want to intervene in cases that directly impact their own interests. On the flipside, litigants in the Netherlands must be aware that interested parties will in principle be able to learn about their litigation and observe the arguments made during the oral hearing.
The Supreme Court's judgment is part of a broader development towards increasing transparency in court litigation in the Netherlands. Dutch courts had already decided to move towards a system where, in principle, all judgments are published. Now, they will also make case details and hearing dates publicly accessible. However, for now, the parties' written submissions do not fall under the new regime, so they are not available to the public.
The Supreme Court's judgment can be found here.