The Dutch have every right to be proud of their leading position where digitalisation and innovation in the ICT field are concerned. This is especially the case with the Kwaliteit en Innovatie Rechtspraak (KEI) programme, which translates roughly as Quality and Innovation in Legal Procedures. The main scope of the KEI programme is that Dutch legal procedures should keep up with the increasing digitalisation of our society, and that judicial powers should benefit from the possibilities of faster and easier decision making.
KEI will be introduced in several phases over the course of 2017 and will bring with it quite a lot of changes. One of the most important changes entail the introduction of one universal basic procedure with one written process round. Both oral pleadings and the personal appearance of the parties themselves (comparitie) will become a thing of the past. The judge will assume more of a director’s role and there will be more room for passing oral judgment. Other changes include a whole new procedural law vocabulary to which lawyers, jurists and legal professionals will have to become accustomed. For instance; the word “writ” (dagvaarding) will disappear, to be replaced by a digital convocation. The same goes for the petition in administrative law cases. Both are renamed as “process initiations” (procesinleiding).
An increasing dependence on digital systems naturally comes with the demand for systems that are reliable and stable. This digitalization and dependence on IT infrastructure, however, also creates a whole host of new and unprecedented legal issues. Suppose you’re a lawyer and it is your duty to compose an important procedural document within a very short time frame (sound familiar?). Who is responsible if, at that particular moment, your laptop crashes or the internet in your apartment block decides to go haywire? This dependency on the IT structure is exacerbated by the fact that in the KEI program, terms and deadlines are more strictly guarded than before: if you’re late, you’re late. So whereas the digitalization process of KEI aims to make the whole process of litigation more efficient, it also creates a dependency on the IT infrastructure; an infrastructure for which legal professionals can now be held accountable.
Luckily, the new rules (Nieuw Rechtsvordering) offer a recovery option. A distinction is made between accountability and force majeure. An example of force majeure, for which you as a lawyer cannot be held accountable, might be a power grid failure, a widespread internet malfunction, or a malfunction in the systems of the court of law itself. That would in all probability amount to an excusable exceeding of the time limit for filing your procedural document (art. 30c lid 8 nieuw Rv).
But what if the problem is due to the fact that you haven’t charged your laptop in time, and left your charger at the office? Chances are that won’t amount to an excusable exceeding of the time limit (art. 30c lid 8 nieuw Rv). Or even worse: due to your own personal circumstances, you simply haven’t gotten around to composing your defense yet, it is already Sunday evening, you’re terribly late and it’s completely your own fault. Of course you’re prepared to put in some extra hours, but how can you remedy the situation?
In that case there is the option of art. 30c lid 6 Nieuw Rv (in administrative cases: art. 8:36a lid 5 nieuw Awb). This article refers to a situation in which you accidentally filed your procedural documents in hard copy instead of digitally. The judge may in that case grant you the opportunity to repair the legal error of filing your legal documents in hard copy instead of through the internet. That would basically amount to a night’s work with lots and lots of coffee, and filing a stack of hard-copy papers in the morning. Of course the court clerk will reprimand you for not filing your documents in the way you’re supposed to. But provided you don’t make any changes whatsoever (which is of course strictly prohibited and unethical), you still might have the option of filing your documents digitally as early as you can.