He who must assert, must prove. Or doesn't he?

The main rule of Article 150 Rv reads as follows: "The party claiming legal consequences of facts or rights asserted by it shall bear the burden of proving those facts or rights, unless a different allocation of the burden of proof follows from any special rule or from the requirements of reasonableness and fairness."

In addition to the special rules and the different distribution of the burden of proof based on reasonableness and fairness to be applied with great restraint, the ability to access information may also lead the court to a different distribution of the burden of proof.

In a judgment of July 8, 2022 (1), the Supreme Court reiterated, that the plaintiff cannot be required to substantiate a claim to the extent that the data necessary for such substantiation are in the domain of her opposing party and she does not have access to them. In that state of affairs, it is rather incumbent on the defendant, in the context of its challenge, to provide such factual information as will provide the plaintiff with clues for any further substantiation of its claim.

In dispute between the parties was whether plaintiff was entitled to a success fee on realized subsidies, rebates and/or savings. Claimant claimed to have realized cost savings in the amount of € 216,813 and invoiced a success fee of € 59,025.43. The defendant refused to pay and the plaintiff started proceedings. She lost at first instance and on appeal. On appeal, this was because she had failed to demonstrate what cost savings she had realized.

That ruling fell at the Supreme Court. An understanding of the savings realized is evidenced by tax records that are only disclosed to the defendant. Under those circumstances, it is not up to the plaintiff to provide that data as part of its evidentiary submission, but up to the defendant to put that data into evidence as part of its (to be substantiated) defense. 

(1) HR 28 January 2011, ECLI:NL:HR:2011:BO6106, paragraph 4.2.2.

Published: 2 December 2022 in Litigation
Please contact Olivier (O.R.) baron van Hardenbroek van Ammerstol
He who must assert, must prove. Or doesn't he?