On 1 July 2017, new rules on expert opinions in legal action came into force.

POSSIBLE TO HAVE MORE EXPERTS ANSWER THE SAME QUESTION

Due to the new addition to section 198 (1) of the Administration of Justice Act, it is now possible to appoint more experts to answer the same question. The provision aims at the situation where there may be several professional points of view or methods concerning the same technical problem, for example due to different training etc.

The amendment implies that independently, the appointed experts must answer the same question with the consequence that the answers may be conflicting.

The court will only appoint more experts if requested by one or both parties.

NEW EXPERT OPINION CONCERNING THE SAME QUESTION

The new provision of section 209 of the Administration of Justice Act widens the access to request a new expert opinion concerning the same question. Until 1 July 2017, it was only possible to obtain a new expert opinion if found appropriate by the court, but case law has turned out to be restrictive. Typically, a new expert opinion was generally only possible if the first expert opinion was erroneous, insufficient and/or unclear.

With the amendment, a new expert opinion may be obtained if rendered probable to the court that a new expert opinion may lead to a different result.

PRODUCTION OF OPINIONS OBTAINED BY ONE PARTY

Until 1 July 2017, it was only possible to produce opinions or statements obtained by one party of a technical, financial or similar nature obtained prior to the legal action.

In practice, the consequence was that the defendant was sometimes prevented from preparing or arranging its evidence to the same extent as the plaintiff. This was due to the fact that the defendant was not aware whether or when the plaintiff was to proceed with the case.  

The new provision of section 341 a of the Administration of Justice Act does not change the plaintiff’s possibility to produce expert opinions obtained by one party obtained by the plaintiff prior to the legal action. However, the defendant may produce a counter-opinion even though this will not be produced until after the commencement of the legal action.

COMMENTS

The rules are expected to affect areas where there is professional disagreement (for example different theories, different training within an area, etc.). This is due to the fact that the new rules will make it easier for the parties to a legal action to have a dispute reviewed by more experts in a situation where expert knowledge is split between several professional angles. But the costs of two experts must be taken into consideration, and if the legal action involves a limited subject-matter, the court will hardly allow that a question is to be answered by more experts with the same qualifications.

The Building and Construction Arbitration Board has a tradition of transferring principles from the Administration of Justice Act to its own rules, but the Board is not bound by the procedural rules of the act. It must be expected, however, that the new rules on expert opinion will rub off on the Board’s procedure concerning evidence by way of expert opinions and the Board's practice.

contacts

Christina Steen

Partner

Christina Bach-Kristensen

Attorney