Is your personal injury claim stuck because the parties disagree about your medical complaints, the collision or the loss itself? A preliminary evidentiary measure can help create clarity before full proceedings for damages are brought. The request must, however, relate to a concrete legal question and to an investigation that genuinely serves a purpose.
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Written by Onur Arslan, attorney at Arslan Advocaten. Do you have questions about your own situation? Get in touch.
What evidence is missing?
A medical examination can answer questions about complaints and limitations. A technical investigation can assess the collision or whether the damage is consistent with it. Witnesses can give evidence about what they observed. Access to certain data may be needed to verify a position taken by the other side.
These means are not interchangeable. A witness does not establish a medical diagnosis, and a vehicle calculation does not in itself prove intentional deception. First formulate which uncertainty is blocking the settlement and which evidence can reduce that uncertainty.
First try to reach agreement together
A joint investigation can save time and argument. Discuss the expert, the questions, the documents, the costs and the procedure for comments. Record which subjects fall outside the instruction and how additional questions will be dealt with.
If no agreement is reached, the court can be asked to order an appropriate evidentiary measure. The current rules of procedure and the transitional law must be checked in that regard. Do not use an old template request with outdated statutory provisions without checking it first.
Targeted questions
A useful question is, for example, which limitations can be established medically and how the likely course of events without the accident is estimated. A question such as “is the insurer right?” is too legal and too general for a medical expert.
In a technical investigation, the input data and uncertainties must be clear. Where necessary, ask for ranges and for the sensitivity of the outcome to the assumptions made. For a witness hearing, it must be stated which specific events the witnesses can testify about.
The difference from a partial dispute procedure (deelgeschil)
A partial dispute procedure is aimed at obtaining a decision that can move out-of-court negotiations forward. An evidentiary measure focuses on obtaining or clarifying evidence. Sometimes evidence is needed first before a partial legal question can responsibly be decided.
The explanation by the Dutch judiciary (Rechtspraak) of personal injury proceedings helps to distinguish between the routes. The most suitable route depends on the dispute, the expected outcome, the costs and the time it will take.
Costs and litigation risk
An investigation may require an advance payment towards the expert’s fees. The final allocation of costs is not always fixed in advance. Also discuss what happens if the outcome is unfavourable or raises new questions. An expert investigation is intended to establish the facts, not to guarantee a more favourable report.
If you have legal expenses insurance, ask in good time about cover, free choice of lawyer and the remaining cost ceiling. The funding arrangement must fit the chosen procedure and the expert’s budget.
Frequently asked questions
Can I always demand a new expert?
No. The interest involved, the questions put to the expert, existing reports and the procedural requirements are all assessed.
Does liability have to be established first?
That depends on the request and on the purpose of the evidence. Have the chosen sequence tailored to your case file.
Does the expert decide on my compensation?
The expert answers questions within their own field of expertise. The legal assessment and the final settlement of the claim follow separately.
Can Arslan prepare the request?
We can identify the missing evidence, negotiate a joint instruction with the other party and, where necessary, prepare a request to the court.
Read also about challenging an expert report and the burden of proof in insurance fraud.
Have us assess which investigation can genuinely move your personal injury claim forward.
This page provides general information and is not legal advice about your own situation. No rights can be derived from its content.
