Access to internal legal assessments under Norwegian law

The clear starting point of the Norwegian Dispute Act is that the rules of evidence relate to the facts of the case, and not to the law. One of several expressions of this is Section 21-1 of the Dispute Act, which states that the rules of evidence apply to “the factual basis for the decision in the case.” A request for access to evidence must therefore remain on the correct side of the distinction between the facts and the law. 

In practice, however, it is not always easy to draw the line, as illustrated by a recent decision by the Norwegian Supreme Court Appeals Committee.

In a case concerning the financial settlement following the Norwegian state's termination of a contract for the purchase of military helicopters, the Court of Appeal did not grant the state's request for access to documents containing information about the sellers' internal legal assessments of their contractual position vis-à-vis the state. 

The Court of Appeal had taken as its starting point that, as a general rule,  internal legal assessments cannot be required to be disclosed solely on the grounds that they contain information about the other party's position. 

The Supreme Court Appeals Committee found this to be too simplistic.

The case before the Supreme Court (reference: HR-2025-876-U) concerns the Court of Appeal's general interpretation of the law in its decision on five claims for access to evidence under Section 26-5 of the Dispute Act, cf. Section 21-7, first paragraph. The disputed claims for access to evidence concern the helicopter companies' internal legal assessments of the companies' contractual position vis-à-vis the state.

In the assessment, the starting point must - according to the Supreme Court's unanimous decision - be Section 21-4 of the Dispute Act (as the Court of Appeal also does). This section states that the parties have a duty to ensure that the case is correctly and fully informed.

The parties must provide access to items – including documents – that may be evidence in a court case, unless the evidence is covered by the rules on prohibition of evidence and exemption from evidence, cf. Section 21-5 of the Dispute Act.

However, the prerequisite is that the evidence is relevant, i.e. that it concerns factual circumstances that may be of significance for the decision to be made, cf. Section 21-7, first paragraph of the Dispute Act.

In addition, the Supreme Court pointed out that the request for access to evidence must be sufficiently specific, cf. Section 26-6, first paragraph of the Dispute Act. It furthermore follows that the court may refuse access to evidence if the costs are not reasonable in relation to the dispute and the possible value of the evidence, cf. Section 26-5, third paragraph of the Dispute Act. If the conditions are met, the court may order access to evidence pursuant to Sections 26-5 and 26-6.

As mentioned, the requirements for access to evidence in this case concern the helicopter companies' internal legal assessments of their contractual position vis-à-vis the State. Under the contract, the companies' liability is limited to 10 percent of the contract value. The Norwegian state argued that the limitation does not apply if the breach of contract is due to gross negligence or wilful misconduct on the part of the companies. It is the state's view that the internal legal assessments are key evidence for the decision on this issue.

The Supreme Court pointed out that in connection with the state's "claim q", the Court of Appeal states that internal legal assessments will be on the borderline of what can be considered evidence of factual circumstances under Section 21-7. The position is justified as follows by the Court of Appeal:

"The order in part ii), as it is now formulated, also covers NHI's internal legal assessments related to liability issues for obsolescence arising under the contract. This will be on the borderline of what can be considered evidence of ‘factual circumstances’ under Section 21-7, first paragraph of the Dispute Act. As a general rule, such documents cannot be required to be produced solely on the grounds that they contain information about the position taken by the helicopter companies, cf. for example Rt-2014-1324, paragraph 23."

The Supreme Court stated that the starting point taken by the Court of Appeal here, that internal legal assessments cannot, as a general rule, be required to be disclosed solely on the grounds that they contain information about the companies' position, also appears to form the basis for the Court of Appeal's decision regarding the other appealed claims by the Norwegian state.

In the opinion of the Supreme Court (cf. paragraph 24), the Court of Appeal's legal basis is too simplistic. In the 2014 decision (paragraph 23) which the Court of Appeal referred to, it is stated:

"There can be no doubt that internal documents setting out the case officer's view of the application of the law will not, as a starting point, constitute evidence of factual circumstances, and that documents cannot be required to be produced on the grounds that they contain information about the position taken by the Ministry's specialist department. The question is how far this extends."

The Supreme Court pointed out that upon reviewing the documents relevant to the 2014 case, the Appeals Committee (in the 2014 decision) concluded that a document consisting partly of internal legal assessments must also be submitted. The reason for this was that the document contained information that could be relevant to the assessment of the plaintiff's claim that the administrative body had committed procedural errors (see paragraph 40–44 in the 2014 decision).

According to the Supreme Court, the 2014 decision thus illustrates that documents containing internal legal assessments may be required to be submitted if they constitute "evidence of facts that may be of significance for the decision to be made" pursuant to Section 21-7, first paragraph of the Dispute Act. The Supreme Court furthermore mentioned that the same is apparent from another Supreme Court Appeals Committee decision (reference "HR-2018-931-U), where it is stated in conclusion (in paragraph 21):

"The fact that access to internal documents may also be of significance for a plaintiff's ability to substantiate their claim is illustrated by the case at hand, where it is argued, among other things, that the documents will shed light on whether anyone has acted negligently in a manner giving rise to liability for damages in connection with the decision to bring charges."

The Supreme Court pointed out (cf. paragraph 26) that as the 2014-decision shows, the relevance requirement must be assessed specifically in relation to the arguments in the case. Both the claim in the underlying dispute and the arguments about what the evidence should illuminate, must be taken into account. If the internal legal assessments are relevant to the question to be decided by the court, they may – according to the Supreme Court - constitute evidence of factual circumstances in the case.

The Supreme Court continued by stating that as it "understands the Court of Appeal's decision", it has, on all of the appealed points of claim, based its decision on a more categorical starting point with regard to the relevance of internal legal assessments under Section 21-7, first paragraph of the Dispute Act than this. The Supreme Court concluded by stating (cf. paragraph 27) that the decision on the appealed points of claim is thus not based on a correct interpretation of the law and must therefore be overturned.

For sake of good order we mention that the Supreme Court did not take a position on whether the relevance requirement and the requirement for specification etc. were met for the individual claims (as this was considered to be outside the Appeals Committee's competence).