What standard of proof applies in civil cases in Norway?

If the parties agree on the facts, the court shall assume the facts the parties agree on. If the parties disagree on the facts, however, the court shall determine what facts the decision shall be based on. When establishing the facts upon which the case shall be decided, the court must apply the free assessment of evidence. The assessment of evidence is based on what has emerged about the facts in the proceedings that form the basis for the decision. In addition to this, the court may rely on admissions made by a party, known material facts, as well as general and specific knowledge and experience.

In many civil disputes, especially commercial disputes of a certain complexity, it is rare that there is no doubt as to the facts. This brings into question the degree of probability required for the court to rely on particular facts, as well as which party has to prove the relevant facts.

The degree of probability required is called the standard of proof. The question of who has to prove the relevant facts is called the burden of proof and relates to who will be affected if the standard of proof is not met. The starting point is that the party submitting a claim has to provide sufficient evidence to support said claim, i.e., that the party has the burden of proof. This means that whoever has the burden of proof will lose the case if the standard of proof is not met.

The question of what degree of probability is required for a certain fact to be assumed is important, as the answer often will affect the procedural risk assessment the lawyer should make in relation to the dispute. This assessment is closely related to how the lawyer believes the court will assess the facts and decide the case.

In the following, we will give a brief summary as to what standard of proof applies in civil cases under Norwegian law.

In Norwegian law, there is no general statutory regulation of standard of proof. The content of the standard of proof in civil law is rather outlined through case law and legal theory.

The starting point in civil cases is that the court shall rely on the facts it finds most likely. This so-called "preponderance of probability principle" means that more than 50% probability is required for a certain fact to be established. The rationale for the principle is that it gives the greatest probability that the basis for the decision, and thereby also the result in the case, will be correct.

The preponderance of probability principle simply contains a requirement for simple preponderance of probability, i.e., just over 50%. In principle, 51% is enough. In an international perspective, the Norwegian standard of proof (the preponderance of probability principle) is somewhat uncommon. By comparison, neighbouring countries Sweden and Denmark operate with a stricter standard of proof, and it is a general European feature that the standard of proof is stricter than in Norway. Furthermore, the Court of Justice of the European Union (CJEU) also applies a stricter standard of proof than the Norwegian one.

While the preponderance of probability principle is the starting point in civil cases, other standards of proof may apply. To place the standard of proof in context, it is useful to outline the different degrees of probability. In "Vitalising" (4th edition) by Jens Edvin A. Skoghøy, a total of six degrees of probability are outlined as follows (page 914):

Whether this many degrees of probability are used in practice in civil cases, is debatable. As a rule, the relevant degrees of probability will be somewhat below or barely above 50%, or qualified preponderance of probability. It is difficult to indicate how many percentages are required for there to be qualified preponderance of probability. However, at least 65% is probably required.

There are few situations where the requirement for probability can be lower than 50%, but examples exist. In April 2002, the Supreme Court concluded that somewhat below preponderance of probability may be sufficient in order for knowledge of possible future circumstances to constitute inside information (HR-2022-695-A). Schjødt argued this case for the party that prevailed with this point of view.

More commonly, though still as an exception, the preponderance of probability principle can be deviated from by making the standard of proof requirement stricter. A stricter standard of proof is usually formulated as a qualified preponderance of probability. In some cases, this follows from statutory provisions, e.g., in employment law. Other exceptions have also been established in non-statutory law (typically case law).

Stricter standards of proof may apply, e.g., if the personal consequences of an incorrect judgment will be substantially worse for one of the parties. Correspondingly, a stricter standard of proof may apply in the event of particularly incriminating facts, e.g., allegations of highly censurable conduct. It is worth noting, however, that it is only in cases where the civil law claim is conditioned by a fact that is particularly burdensome for one of the parties that the standard of proof can be made stricter. This means that even if the standard of proof is made stricter in relation to a compensation claim, the preponderance of probability principle applies when determining the scope of the compensation claim, i.e., the assessment of compensation (see HR-2018-874-A).

Considerations for securing of evidence may also lead to a stricter standard of proof. There is case law to the effect that if one party has had the opportunity and invitation to secure evidence for an actual circumstance, while the other party has not had the corresponding opportunity or invitation, this may provide basis for allowing evidentiary doubt to affect the party who could and should have secured the relevant evidence. In such a case, the actual circumstance must be proven with more than a general preponderance of probability. However, the case law to this exception is not unambiguous, and has been subject to scholarly debate.

The abovementioned demonstrates that Norwegian courts (including arbitral tribunals) as a general rule will apply the preponderance of probability principle, thus relying on the fact which, after an overall assessment of evidence, is considered most probable. However, there are exceptions where other standards of proof may apply, i.e., where a qualified preponderance of probability may be required. It is also not inconceivable, but rare, that the requirement for probability may be set somewhat lower than 50%.