Written by Yord Koudstaal
Published on 13 July 2026
Mandatory truthfulness
A lawyer makes every effort to win a case for his client, but he will have to make do with the facts at hand. In fact, under the law (Article 21 of the Dutch Code of Civil Procedure (“DCCP”)), parties in civil proceedings are obliged to present the facts completely and truthfully. The underlying idea is that the court’s decision should be based on the truth as much as possible.
In the event the court finds that a party has told a lie, or has withheld important information, the court can “draw such inference therefrom as it thinks fit”, according to Article 21 DCCP. Thus, the court is free to choose whether to impose a sanction, and if so, what sanction to attach to the violation of Article 21 DCCP. This will depend on the nature and seriousness of the violation and the other circumstances of the case.
Disregarding statements/submissions
The inference most often drawn by judges in such a case is to disregard (to a certain extent) statements and/or submissions of the party concerned. This allows the judge to assess more critically certain or even all of the submissions of the party who breached the duty of truth. It is also possible for the judge to adopt a presumption against which the party must then provide rebuttal evidence. In more serious cases, the judge could even completely ignore the submissions of the party concerned, assume the correctness of the opposing party’s submissions, even without allowing rebuttal evidence. A judge can also assume that the missing information is detrimental to the party concerned.1
The court can also dismiss a claim for breach of duty of truth
In an exceptional case, the court can even dismiss a claim for a breach of the duty of truth, as shown, for example, in a Supreme Court judgment of 16 July 2021 (ECLI:NL:HR:2021:1144).
Case study
In this case, the two claimants are owners and lessors of a commercial shed. This shed is subdivided into several units, leased to individuals for storage. Fire insurance was taken out with the insurance company ASR through an intermediary for the benefit of the shed, but after the owners of the shed refused to implement the prescribed preventive measures, ASR canceled the insurance. Acting on the intermediary’s advice, the two owners take out a new fire insurance policy with Aegon (another Dutch insurance company). In the application form, the owners (again on the intermediary’s advice) deny that the previous insurer has cancelled the insurance. Two days after the insurance takes effect, the police dismantle a cannabis farm in the shed. Less than three months later, the shed burns down completely.
One of the owners is arrested as a suspect in connection with the cannabis farm. Initially, he claims not to have been involved in the cannabis farm, but later he mentions that the farm belongs to a tenant and adds that he only knew of its existence since about 2 to 2.5 weeks before the dismantling. He would then have tolerated the cannabis farm and received compensation in return.
Aegon conducts an investigation, but the cause of the fire does not surface. Aegon later terminates the insurance with immediate effect because of a) a breach of duty of disclosure by failing to disclose that ASR had cancelled the insurance for failing to take preventive measures and b) the involvement in the cannabis farm (by tolerating it).
The two claimants hold the intermediary liable for damages. They believe the intermediary breached its duty of care by advising them to take out insurance with Aegon and denying in the application form that the previous insurer had cancelled the insurance contract. The court concludes that the intermediary did indeed breach its duty of care (due to its advice to conceal the previous cancellation), but that the causality between the breach of duty of care and the damage is not (yet) established.
According to the court, the intermediary also breached its duty of care because he should have warned the claimants that they would not be able to successfully claim insurance with Aegon even after the cannabis farm was dismantled (due to their involvement in the farm). The court gives the claimants the chance to prove that another insurer would have insured the shed after being informed that it contained a cannabis farm. If they succeed, the causal link between the breach of the duty of care and the plaintiffs’ damages is established, the court rules. The plaintiffs succeed in proving this. This establishes the causal link.
Things thus seem to be moving in the right direction for the plaintiffs, until the intermediary states (through a brief) that he has become aware of new facts. A criminal judgment reveals that the plaintiff has confessed to setting up the cannabis farm himself. The court then dismisses the plaintiffs’ claim on grounds of breach of the duty of truth. The Court of Appeal upholds the court’s judgment and the Supreme Court also dismisses the plaintiffs’ appeal.
Conclusion
Lying or deliberately withholding essential information can have major adverse consequences in civil proceedings.
1 C. Seinen, “De waarheidsplicht en de geraden gevolgtrekking anno 2020: een zoektocht naar proportionaliteit” TCR, nr. 2.
