Expert advice in Danish civil cases

Civil disputes are often decided based on the court's assessment of the factual circumstances in the case. It is therefore important to ensure that the court's factual basis for a decision is the best possible.

Under Danish law, the parties have the primary responsibility for the proof of evidence in civil court and arbitration cases. This also means that if the parties agree on the facts, the court must base its decision on the agreed facts. However, if the parties disagree on the facts, the court decides which facts the decision should be based on.

It is then up to the parties to prove that the facts they claim exist are the ones the court should rely on. In Danish law, there is a burden of proof which means that the party making a claim must provide sufficient evidence to support the claim.

In complex cases or cases of a particularly technical nature, there may be a need for expert guidance on the facts on which the court bases its decision.

In Danish legal proceedings, expert advice can be obtained in different ways. In this article, we will focus on two standard methods of obtaining expert advice, namely in the form of expert opinions and unilaterally obtained expert statements.

This article is about expert advice in civil cases. However, expert advice can of course also be provided in arbitration cases, which can be particularly relevant in the construction industry. The Danish Administration of Justice Act does not apply in such cases. However, the different arbitration institutions often use criteria that are largely similar to those laid down in the Danish Administration of Justice Act, although there are differences. This is reflected in practice and in the different arbitration institutions' own rules for arbitration proceedings (as far as institutional arbitration is concerned).

A correct obtained expert opinion can be the difference between losing or winning a case.

The most common way to get expert advice on the facts of a case is by getting an expert's opinion. An expert's opinion is an inspection carried out by an expert on the area. The inspection consists of two elements. The first element is the inspection, i.e. the actual examination. This is often an examination of the quality of a piece of work performed. The second element is the assessment, which is the expert's assessment of the work performed, including whether the work has been carried out in accordance with the contract and/or in accordance with good practice in the industry in question and if not, what the remediation costs will be.

The purpose of an expert's opinion is for the examination and assessment to be used as evidence in the case and as assistance to the court. Therefore, it is also important that the expert's examination and assessment is impartial, in accordance with the general principles of Danish procedural law.

The expert must only give an opinion on factual matters. Thus, the expert is not allowed to give an opinion on legal matters. The opinions that the expert has regarding the factual matters will often be of great importance for the decision of a civil case, as the courts often rely on these opinions.

Expert's opinions can be used in many different circumstances, but the typical area for expert's opinions is in disputes that have arisen in mutually binding contractual relationships. The party who is not satisfied with the performance will typically try to fulfill their burden of proof, that the delivered is inadequate, through an expert's opinion.

Once the lawsuit has been filed, the expert advice, including experts' opinions, must generally be obtained in accordance with the rules in chapter 19 of the Danish Administration of Justice Act. It is the court that primarily controls the process for obtaining expert opinions.

A request for an expert opinion must be submitted to the court and should be submitted as early as possible in the proceedings. It is often one of the parties who requests an expert opinion and typically the party who needs the statement to fulfill their burden of proof. However, it is also possible for the court to call for an expert opinion, but ultimately, an expert opinion must be requested by at least one party.

When requesting an expert's opinion, the request must state the framework for the expert's opinion. This includes what the subject of the expert's opinion is, why an expert's opinion is needed and what the expert's opinion must prove or disprove. The latter, that it must be stated what the expert's opinion must be able to prove or disprove, must be a precise specification.

After an expert's opinion has been requested by one party, the other party must be given the opportunity to comment on the request before the court decides whether or not to grant the request. In practice, the court generally accepts the request, but in some cases the request is rejected if the court believes that an expert's opinion may be superfluous.

If a decision is made to obtain an expert's opinion, the parties must exchange the questions they have for expert with each other, i.e. so that the questions from both sides are included in the report from the expert. This process is made to ensure that both parties have influence on the physical inspection of i.e. the property that is later conducted and ultimately to increase the evidential value of the report. However, it is only the party requesting the expert's opinion that is obliged to ask questions. The parties can each ask questions and do not have to agree on which questions to ask or how to phrase them, however, the parties may dispute the wording of the questions. As a rule, the court does not interfere with the questions unless the parties disagree. The court also has the option of rejecting questions if they are deemed irrelevant.

The phrasing of the questions has an impact on the expert's response, which makes the wording of the questions of great importance. Preparing the questions for the expert therefore requires thorough preparation.

Once the questions have been asked, the expert convenes the inspection, where the questions are firstly reviewed, and any clarifying questions are asked by the expert. The inspection is then carried out by the expert, which can be carried out with or without the parties present. Afterwards the expert will form an opinion.

If the opinion proves to be non-favorable, it is often difficult for the parties to obtain permission by the court to carry out a whole new inspection by a different expert. Experts might disagree, which makes it difficult to assess the weight of the different experts' opinions. It is thus easiest for the court if only one expert is used.

It is, however, possible but will require either the opinion is materially flawed, incomplete and/or unclear and the deficiencies cannot be remedied by additional questions to the original expert, or ineligibility or disqualification of the expert. The party may also argue that the original expert's professional approach is not "exclusive", as there are "several schools", and that the case concerns significant values or otherwise has far-reaching significance for the parties. This is the expanded access to a new inspection and assessment introduced by the amendment to the law in 2016.

As such, the Supreme Court of Denmark (judgement U.2019.3020 H) allowed a new experts opinion in a real estate case. As the first expert had issued a statement based on a return-based model, the Supreme Court of Denmark allowed a new expert's opinion according to a so-called Discounted Cash Flow method (DCF).

In many cases, however, it will be more appropriate to obtain the court's permission to obtain expert statements - e.g., from a technological institute or a trade association - commenting on the expert opinions. However, neither expert statements nor expert witnesses can generally be used as "counter-opinions".

Instead, the parties will often ask the court for permission to ask new or additional questions to the same expert. This will sometimes lead to a new additional inspection. Once the expert has answered the main questions and any supplementary questions, the court will schedule the final main hearing in court, and at this hearing, one or the other party will often call the expert to testify about the opinion.

It should be noted that it is even possible to get an expert opinion when only considering filing af civil lawsuit. This is called isolated evidence taking (in Danish: Isoleret bevisoptagelse) and follows the same process in court. You can then use the statement as evidence in a later court case.

Expertise in one's evidence can also be obtained in other ways than by conducting an expert opinion. Among other things, expertise can also be obtained by obtaining a statement of facts. However, obtaining a statement of facts seems problematic in cases where only one party has obtained a statement.

If a party has obtained a statement without involving the other party and possibly the court (a so-called uni-laterally obtained statement), the other party has not had the opportunity to protect its interests, which may have affected the content of the statement.

As both parties have not had the opportunity to protect their interests, this may affect the evidentiary significance of the statement. The court may either deny the submission of the statement or the court may allow the submission subject to consideration of the weight of the evidence in connection with the general assessment of evidence. The evidence value typically cannot be restored by calling the expert to give testimony about the report trough cross-examination in court.

However, when talking about unilaterally obtained statements, it is important to distinguish between whether the statement was obtained before or after the case was proceeded.

If a statement on a specific matter of a technical financial or similar nature is unilaterally obtained before the case is proceeded, it is often obtained as part of the general considerations on the basis for proceeding a lawsuit - and it can then generally be submitted.

However, this principle may be deviated from if the content of the statement, the circumstances of its creation or other circumstances provide grounds for deviating from the principle.

If an expert statement is to be obtained after the case has been filed, the party in question must use the rules of the Danish Administration of Justice Act on obtaining expert advice. As a general rule, a statement obtained unilaterally after the case has been proceeded cannot be submitted. Although, permission for submission may be granted in certain cases.

If one party has obtained an expert statement prior to the proceeding of the case, the other party has not been able to obtain a corresponding statement prior to the proceeding of the case. In order to equalize the situation, it is therefore allowed that an opposed statement can be obtained after the case has been proceeded.

The above illustrates that in Danish civil law cases, it is possible to involve special expertise regarding the factual circumstances of a case. This expertise can in particular be used to lift the burden of proof.

The above also illustrates that there are several rules in the Danish Administration of Justice Act that you should be aware of when involving special expertise.