Civil legal expert examination in Denmark: Situation
Extract from the final Eurexpertise report
All rights reserved EEEI © 2012
- Børge DAHL, First president of the Supreme Court
- Christian EMORINE, Consultant
- Béatrice DESHAYES, Avocat & Rechtsanwältin – Partner HW&H
Other administrative order
No other administrative order (see. < org. judiciaire par pays.pdf> / ‘legal systems by country’). But there is specialised training: a litigant can come forth at the Maritime and Commercial Court – but it is not mandatory. It is then made of one or three judges, and of two or four judge – experts.
There is no specific expert examination proceeding in this jurisdiction.
I. Procedural rules in calling for an expert examination
I. 1) On the initiative of
The court appoints an expert on request of a litigant.
The court can refuse to appoint an expert if the procedure seems superfluous but usually the request is granted.
– One cannot request an expert on purely legal matters, unless it is as a consultant about laws from another State (but the rules of international law – i.e. EU, human rights, international treaties – which can be applied to Denmark as assimilated to national law).
– The expert examination cannot address the shortcomings of part of the taking of evidence unless this evidence cannot be obtained through ordinary means.
I.2) Mandatory expert examinations
Under family law, i.e. in litigations over child custody or visitation rights, it is mandatory to appoint a child psychologist expert.
I. 3) Decision-maker
A single judge makes the decision in the name of the District Court. The proceedings can be oral, but are generally written. The judge can refuse the request if he considers it useless to appoint an expert, but usually grants the request when the litigants are in agreement.
I.4) Is a pre-trial expert examination possible?
Before any main proceedings: the court appoints an expert on the request of one or more litigants.
The appointment is made by a single magistrate, in the name of the District Court in question. They proceedings can be oral, but are generally written.
II. Choice and appointment of the expert(s)
II. 1) Register
Some public organisations have expert registers, from which the court might make his pick when the issue falls within their area of competence, i.e. forensics.
Under family law, all the courts have a register of child psychology experts.
When there is no list, if both litigants agree, the court will appoint an expert who seems competent.
A civil servant cannot usually be appointed as an expert, unless he is a member of a register held by one of the official organisations mentioned above.
II. 2) Oath
During the hearing to which the expert is called, the judge reminds him of his obligations and of the penalties which could be applied in case of offense. See point 7 – b below.
II. 3) Choice of the Expert
If the litigants agree on the name of an expert, the judge usually appoints him (even if he is not obliged to).
II. 4) Participation by the parties in the appointment process
The litigants can agree on the name of an expert. The court is not bound by this choice, but it is very rare that itdoes not follow the suggestion.
The litigants can refuse the court’s choice if they have valid reasons to.
II. 5) Nationality
II. 6) Recusal by the litigant parties
Possible, if the expert does not respect professional requirements or cannot be independent, or in case of conflicts of interest
Recusal is put the court’s discretion.
II. 7) Expert’s withdrawal (refusal of a mission)
In principle, not possible, except for foreign experts or civil servants taken with other duties. In practice, the judge avoids choosing an expert who might have to withdraw.
II. 8) Possibility of adding another expert
Adding another expert: if need be, the expert must tell the court if there are questions beyond his area of competence, and the judge can then appoint another expert on the litigants’ request.
II. 9) Possibility of being assisted by a colleague
A partner or consultant’s intervention is possible, but the appointed expert is the only one liable for the mission’s progress and the report.
III. Definition of the expert’s mission
III. 1) Who determines the mission?
The litigants agree on the questions asked the expert.
If there is no agreement, the court sets the expert’s mission.
III. 2) Type of mission
There is no conciliation mission, only the judge, or a lawyer appointed by the judge, can carry out that type of mission.
IV. Progress of the expert’s mission
IV. 1) Judge supervision
The judge supervises the progress of the expert’s mission, he can set deadlines and order expert examination measures.
On the request of the litigants, the judge can add additional questions.
IV. 2) Form of contradictory procedure
The in situ investigation techniques must be contradictory but the expert’s other procedures until he submits his report do not have to be. The report can be discussed and contested during a hearing which the expert attends.
The litigants are legally required to collaborate. On the request of a litigant, the judge can order another litigant to provide a document. Refusal to obey is not penalised, but the judge can let it influence his decision. There may be issues due to professional secrecy or medical confidentiality.
IV. 3) Participation in the hearing
V. Close of the expert examination
V. 1) Does conciliation put an end to the expert’s mission?
Conciliation puts an end to the expert’s mission. The judge can however interfere to tax the expert’s fees if the litigants disagree on this issue.
V. 2) Form imposed on the report
The expert submits a written report, which does not necessarily put an end to his mission.
There is no form imposed, but the report must account for the background, the questions asked, the expert’s proceedings, and must answer the questions. There may be some standards specific to the profession to which the expert belongs.
V. 3) Does the report put an end to the expert’s mission?
No, the expert is generally called to the court’s hearing and is confronted to the litigants’ questions.
V. 4) Is there an imposed structure for the report?
There is no mandatory structure, but the report must account for the background, the questions asked, the expert’s proceedings and must answer the questions. There may be some standards within the profession to which the expert belongs.
The expert must (possibly applying his own professional standards) explain the approach that led him to formulate his answer to the questions asked, or his conclusions will not carry the same weight as if the report was well structured.
The expert is not obliged to answer the opinions given by the litigants; he is only obliged to answer the questions asked during the mission.
The elements produced in front of the expert are not added as appendices to the report, but their processing is described when justifying the conclusions.
V. 5) Is a preliminary report mandatory?
The expert does not have to produce a preliminary report.
V. 6) Is the judge bound by the expert’s conclusions?
The court is never bound by the expert’s conclusions.
V. 7) Possibility of a second opinion
A second opinion is possible, on an argued request of one of the litigants and if the judge agrees to it. The second expert’s report does not replace the first: the judge then has either two identical or two different conclusions.
VI. Funding for the expert examination
VI. 1) Security-Payment
Payment is possible but unusual …
… hence the lack of answer about the possibility of supplementary payment (A.N.)
Payment is pre-paid by the litigant who requested the expert.
If the court believes that the report was not useful, the litigant has the burden of paying the expert.
Otherwise, the burden is usually put on the unsuccessful litigant.
VI. 2) Determining the amount of payment due
VI. 3) Possibility of additional payment
VI. 4) Determining fees and costs
The expert’s fee is taxed by the judge, after a proposal by the expert, and with the agreement of the litigants. There is no legal payment scale, but there are specific rules to professions which may apply.
VI. 5) Possibility of contesting the fees
The amount thus taxed can be contested in an appeal stemming from a litigant or from the expert.
VII. Expert liability within proceedings
VII. 1) Are there any laws governing expert examinations?
The expert must respect the professional rules which regulate his specialty, impartiality and professional secrecy.
There is no representative structure of legal experts as such.
There is no specialty register.
- Except for the registers mentioned above in point 2-a (A.N.)
There is no code of ethics or “good practice” specific to legal expert examination.
The expert does not take an oath. During the hearing to which he is called, the judge reminds him of his legal duties and of the penalties that apply in case of infringement of these duties.
VII. 2) Expert liability
The expert who does not comply with the professional rules as expected can be replaced, his fees reduced or can even be considered liable.
Criminal behaviour when carrying out one’s mission can lead to criminal charges.
There is no general obligation to take out third-party liability insurance, although there may specific rules within the expert’s profession.
VII. 3) Mandatory insurance for the expert
VII. The expert’s status
VIII. 1) Existence of selection criteria (accreditation)
Except in child psychology
VIII. 2) Classification of skills
VIII. 3) Required qualifications
VIII. 4) Grant of accreditation
VIII. 5) Possibility of accrediting a legal person
The expert is a natural person. A legal person cannot normally be appointed unless it is an official organisation.
VIII. 6) f) Validity period for the accreditation
VIII. 7) Regular assessment tests
VIII. 8) Supervision of the expert’s mission
VIII. 9) Expert’s activity report
VIII. 10) Code of ethics
Impartiality, respect of the rules regulating the expert’s profession and professional secrecy
VIII. 11) Good practice
VIII. 12) Possibility of penalties
False declarations can be sanctioned by a fine or a prison sentence.
VIII. 13) Laws governing the expert’s status
Law on legal proceedings (retsplejeloven) n° 1053 of October 29 2009, section 196-211.
Law on legal proceedings (retsplejeloven) n° 1053 of October 29 2009, section 196-211.
– “Proceduren” (chapter 15); Claus Høeg Madsen; 3rd ed.; 2009; Jurist- og Økonomforbundets Forlag
– ”Syn og skøn: efter retsplejelovens regler i skattesager og i andre sager”; Poul Bostrup & Grete Due; 1st ed.; 2007, Forlaget Thomson
– ”Syn og skøn”; Erik Hørlyck; 3rd ed.; 2004; Jurist- og Økonomforbundets Forlag