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Home >> Expertise >> Europe >> Civil legal expert examination in Norway (not part of the EU)

Civil legal expert examination in Norway (not part of the EU)

Extract from the final Eurexpertise report

All rights reserved EEEI © 2012

Kjersti BUUN NYGAARD, Assistant General Secretary of the Supreme Court

Authors

Béatrice DESHAYES, Practicing Avocat & Rechtsanwältin - Partner HW&H

Christian EMORINE, Consultant

Other administrative order

NO

I. procedural rules in calling for an expert examination

I. 1) On the initiative of

During the procedure: at the judge’s own discretion, if it is necessary in order to establish the facts. At the request of one of the parties or both (and in this case the judge rarely refuses unless the measure seems disproportionate in relation to the dispute) or court-appointed.

In matters in which the parties do not have the free exercise of their will (personal status, parental authority…) the appointment can be made by the court even if the parties are opposed to it.

The judge can also, at one party’s request, appoint an expert to ensure “a balance between the two parties” in the production of evidence, when the case can have repercussions that go beyond the trial itself.

First instance courts as well as appeal courts can appoint experts not to investigate the facts but as assessors or aldermen. In this case, the expert participates in the court’s decision on the basis of the evidence presented during the public hearing.

I.2) Mandatory expert examinations

UNSPECIFIED

I. 3) Decision-maker

The judge alone.

I.4) Is a pre-trial expert examination possible?

Generally not, except in family matters (for example in determining parental authority).

II. CHOICE AND APPOINTMENT of the expert(s)

II. 1) Register

For existing registers (doctors), the Council of Physicians determines the conditions for registering the

experts. The expert must prove to have sufficient general knowledge in forensics, basic knowledge of Norwegian law, and a particular expertise in one field of forensics.

There are no registers for civil procedures.

II. 2) Oath

At each mission.

II. 3) Choice of the Expert

The judge is generally free to select the expert he will appoint.

The expert must have the necessary competence and experience. If there is a register, the expert must generally be selected from it unless circumstances call for a third party to be appointed.

II. 4) Participation by the parties in the appointment process

If the parties have agreed on their choice of expert and if he has accepted the mission, he must be appointed, unless specific reasons oppose his appointment.

The parties must be “heard” in writing and can suggest a particular expert, but there is no hearing to rule on the request for an expert opinion.

II. 5) Nationality

No restrictions.

II. 6) Recusal by the litigant parties

On the same grounds as for judges

II. 7) Expert’s withdrawal (refusal of a mission)

YES

II. 8) Possibility of adding another expert

Yes, by the judge

II. 9) Possibility of being assisted by a colleague

The expert is supposed to fulfil his mission alone but he can nevertheless be assisted by a third party. However this third party will be paid only if the court considers his assistance is an absolute necessity.

III. DEFINITION OF THE EXPERT’S MISSION

III. 1) Who determines the mission?

The judge determines the content of the expert’s mission and gives him the necessary instructions.

He can ask the parties to define the framework of the mission.

III. 2) Type of mission

All

IV. PROGRESS OF THE EXPERT’S MISSION

IV. 1) Judge supervision

The appointed expert is under the obligation to fulfil the mission he was entrusted with. If he encounters obstacles when trying to obtain the necessary information from the litigants or from third parties, he can refer to the judge.

IV. 2) Form of contradictory procedure

The parties can make observations as regards the framework of the mission, and also once the report has been submitted. They can ask the expert questions at the hearing (after the report has been handed in) if he is heard by the court.

IV. 3) Participation in the hearing

Yes, at the request of the parties or the judge.

If the parties request that the expert be summoned to the hearing, the Court generally accepts.

V. Close of the expert examination

V. 1) Does conciliation put an end to the expert’s mission?

Yes: the judge informs the expert that he can put an end to his work.

V. 2) Form imposed on the report

The report must be presented in written form. The court can ask for an additional report.

The expert must mention the parties’ opinions and respond to them if they are relevant to the fulfilment of his mission. He does not have to enclose all the documents filed by the parties but since he must give an account of his mission, he must mention if he has collected elements from the litigants or from third parties. He must describe his methodology, his results, and his reasoning.

V. 3) Does the report put an end to the expert’s mission?

The court or one of the parties can ask the expert to present his report orally and/or answer questions or provide clarifications. The expert must then appear before the court according to the same rules that govern a witness.

V. 4) Is there an imposed structure for the report?

The report must be clear and detailed explanations given so that the court may understand exactly how the expert reached his conclusions.

V. 5) Is a preliminary report mandatory?

NO

V. 6) Is the judge bound by the expert’s conclusions?

The judge is not bound by the expert opinion.

V. 7) Possibility of a second opinion

Yes, if the judge deems it necessary depending on the factual circumstances of the case.

VI. Funding for the expert examination

VI. 1) Security-Payment

If the expert opinion was requested by one of the parties, this party must bear the cost of advancing the payment. (one exception is for rulings implementing coercive measures in matters related to health and social services. In these cases, just as in criminal proceedings, the State pays the expert’s fees).

VI. 2) Determining the amount of payment due

By the judge

VI. 3) Possibility of additional payment

UNSPECIFIED

VI. 4) Determining fees and costs

There are no specific statistics on the cost of a judicial examination: it can go from a few hundred euros to sums above 50,000€.

The expert is paid by a flat rate according to hourly rates set by law. These rates correspond to those of court-appointed lawyers within the context of legal aid.

VI. 5) Possibility of contesting the fees

YES

VII. Expert liability within proceedings

VII. 1) Are there any laws governing expert examinations?

YES

VII. 2) Expert liability

If

He is civilly liable towards the parties.

The expert can be sentenced to a fine if he does not answer the judge’s questions or is absent at the hearing. However this is a theoretical possibility and in practice if the report has major faults or if the expert does not respect his main obligations, the judge can decide to replace him. His fees can be diminished if he does notrespect the due requirements, He is civilly liable towards the parties.

VII. 3) Mandatory insurance for the expert

NON

VIII. The expert’s status

VIII. 1) Existence of selection criteria (accreditation)

NO

VIII. 2) Classification of skills

None

VIII. 3) Required qualifications

Assessment of knowledge and experience.

VIII. 4) Grant of accreditation

No accreditation.

VIII. 5) Possibility of accrediting a legal person

Legal persons cannot be appointed, but the expert may be a member of a legal body such as a university laboratory or the like.

VIII. 6) f) Validity period for the accreditation

No accreditation.

VIII. 7) Regular assessment tests

NO

VIII. 8) Supervision of the expert’s mission

NO

VIII. 9) Expert’s activity report

Not in civil matters.

VIII. 10) Code of ethics

No, unless the expert is subject to it by his professional body (association, order…).

VIII. 11) Good practice

NO

VIII. 12) Possibility of penalties

Yes, (a fine) but they remain quite theoretical.

VIII. 13) Laws governing the expert’s status

UNSPECIFIED

IX. Bibliography

Frequency of expert examinations: in civil matters, in first instance and appeal courts, in about 17 to 21% of disputes.

T. Schei et. al., Tvisteloven. Kommentarutgave, Oslo 2007 [The Civil Procedure Act]

H.K. Bjerke & E. Keiserud, Straffeprosessloven. Kommentarutgave, 3rd ed., Oslo 2001 [The Criminal Procedure Act]

J.E.A. Skoghøy, Tvistemål, 2nd ed., Oslo 2001

J.E.A. Skoghøy, Tvisteløsning, Oslo 2010

J. Andenæs, Norsk straffeprosess, 4th ed. (by T-G Myhrer), Oslo 2009

P. Brandtzæg & S. Eskeland (eds.), Rettsmedisinsk sakkyndighet i fortid, nåtid og fremtid, Oslo 2007

T.O. Lundevall & J. Rognum, Lundevalls rettsmedisin, 7th ed, Oslo 1997

I.R. Lundeberg, “Sannhetsvitnet”, Tidsskrift for Rettsvitenskap, 2009 pp. 611-645

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  • Eurexpertise final report - Norway (pdf 227.1 kb) Download
Institut Européen de l’expertise et de l’expert
Mailing address  : EEEI Jean-Raymond LEMAIRE, 38, rue de Villiers - 92532 Levallois-Perret cedex - France Tel : +33(0)1 41 49 07 60 - Fax : +33(0)1 41 49 02 89