Development in the access to new Court-appointed expert evidence in Danish court proceedings

The first case concerns a dispute between the Buyer and the ultimate Seller et al., regarding the valuation of Company G, purchased by the former from the latter. In this dispute, the Buyer has appealed the first instance judgment to the Western High Court and has requested the appointment of new court-appointed experts to provide evidence on the value of Company G, as the Buyer argued, inter alia, that the appointed experts had made significant, professional errors and their evidence reflected a professional approach to the subject that is not universal or unchallenged, i.e., that there are "several schools". 

After an overall assessment, the Western High Court found that it was uncertain whether the evidence from the experts already appointed satisfies the professional requirements necessary to fulfil the purpose of the evidence. Additionally, the Western High Court found that the Buyer had demonstrated that there were several schools of thought applicable to the experts' specific tasks and evidence. Against this background, the court concluded that there were reasonable grounds for assuming that other experts could possibly come to a significantly different conclusion. 

Thus, the Western High Court acceded to the Buyer's request for new experts to be appointed to provide evidence regarding the valuation of Company G.

This decision threads the needle of said Section 209, where access to new court-appointed experts traditionally has been quite restrictive, and parties are thus regularly left to rely on a single (or one group of) court-appointed expert and his/her evidence.

As a principal rule in Danish law, it is the primary responsibility of the party making a claim to provide sufficient evidence to support it. At the same time, the possibility of submitting party-appointed expert evidence is highly restricted in Danish court proceedings.  

Hence, when situations arise where the court must decide on matters and circumstances that require technical or specialist knowledge, the institution of court-appointed expert evidence comes in as a key procedural instrument in Danish court cases. Court-appointed expert evidence carries great evidentiary weight in court proceedings, and its conclusions are often followed by the courts (although they are not bound by these).

The fundamental rule and modus operandi under Danish law is to only have one (or one group of) court-appointed expert(s) appointed to provide evidence for the court to assess. The traditional motivation for this being to avoid the infamous "battle of experts". However, according to Section 209 of the Danish Administration of Justice Act – a provision that is seldom successfully invoked – the Danish courts may grant a request for evidence from new court-appointed expert(s) on the same matter. The preparatory works to the provision specify that this is the case, if there are reasonable grounds for assuming that another expert will be able to reach a significantly different conclusion. The preparatory works provide that this may occur where the court finds it probable that the conclusions of the initially appointed expert(s) may reflect a professional theory on the subject that is not universal or unchallenged within the subject in question, i.e. that there are several "schools ".  
 

In a newly issued decision from the Eastern High Court, it may be argued that the court has applied or implied an extension to the scope and applicability of the access to have new expert(s) appointed under Section 209 of the Danish Administration of Justice Act.

This decision pertains to a dispute between the Buyer and an Auditor company of Company Q, which was bought by the Buyer on the basis of, inter alia, an annual report audited by the Auditor company. The Auditor company requested the Eastern High Court to appoint new experts.

In its decision, the Eastern High Court found it sufficiently probable that, when applying the relevant assessment techniques, there may be several recognised "methods of approach" including with regard to the use of techniques and that the choice may have an impact on the assessment. Against this background, the court granted the Auditor company's request for appointment of new experts.

In the second case, the Eastern High Court's decision seems to represent a (potentially significant) departure from established practice for having new experts appointed under Section 209 of the Danish Administration of Justice Act. While the Western High Court's decision aligns with established practice for Section 209 – i.e., acceding to the appointment of new experts as it is uncertain whether the existing expert evidence satisfy the professional requirements necessary to fulfil the purpose of the evidence and as it was demonstrated that there are several schools of thought applicable to the experts' specific tasks and evidence – the Eastern High Court's decision has seemingly expanded the provision's scope and applicability considerably.

The Eastern High Court's decisive factor being multiple "methods of approach" suggests an access to new court-appointed expert evidence based on procedural or methodological variations within the same professional school of thought. 

If the decision is upheld on appeal and generally interpreted as above, this interpretation and its application could significantly increase the frequency of new court-appointed expert evidence requests, as parties may argue that alternative methodological approaches within established professional schools of thought could yield different results. This could represent a fundamental shift from the current restrictive application of Section 209.

The implications extend beyond procedural efficiency to case strategy, as parties may need to consider not only whether competing professional theories exist, but also whether alternative methodological approaches within accepted schools of thought could support their position.

As mentioned above, court-appointed expert evidence carries great probative weight and often determines the success of a claim in Danish courts. Given that such evidence can be decisive for the parties in dispute, strategic consideration of expert evidence requirements is fundamental to an effective litigation strategy.

In this context, the two decisions represent either the traditional viewpoint in Danish court proceedings with narrow access to new court-appointed experts or possibly an expanded scope that permits challenging the court-appointed experts on their specific application within the same school of thought. As the two decisions are pending permission to appeal before the Supreme Court, their final outcome may either confirm the modus operandi for requesting new court-appointed expert(s) in Danish court proceedings or lay the foundation for new litigation opportunities in challenging the existing court-appointed expert evidence.