Danish procedural rules for securing and presenting expert and witness evidence to the court is conservative judging by the letter of the law. But all is not what is seems in practice. The procedural rules that apply are designed to promote certainty that both parties to a case have had an opportunity to make their investigations and to eliminate doubts concerning the credibility of evidence presented unilaterally by one party.
Hence, the Danish Administration of Justice Act Chapter 19 provides that expert evidence must be obtained following a strict regime, which is broadly as follows:
Any party can request that expert evidence is obtained, but must do so by application to the court. This can be done either as a part of legal proceedings which are already afoot, or before legal proceedings are commenced as a fact finding mission. The latter may then obviate the need for legal proceedings. The information gathered may convince a potential claimant not to pursue the intended defendant, may convince the parties to solve the matter by way of settlement, or a tortfeasor to honour the claim. As such, it can be a very advantageous way to save time and costs.
However, once the court has decided to allow that expert evidence is obtained, the parties must agree the identity of a joint expert, or of a proposing body, which will propose one or more experts. The parties must also agree a joint questionnaire for the expert or, failing such agreement, submit their own questionnaire each. The expert will be appointed by the court and the court will approve the questionnaires. All communication between the expert and the parties will be made c.c. the other parties to the case and the expert will ultimately submit answers to the questionnaire(s) in a report, which is sent to the court.
The court will, however, censor questions which are purely hypothetical or "trick questions" and so both issues on the identity of the expert and the questionnaires are subject to potential protests from either party to the case. Accordingly, although the courts are prepared to handle requests for expert evidence as matters of urgency, expert evidence can be bogged down in minutiae. Indeed, one of the parties may see an interest in delaying matters, and certain lawyers consider agreement on experts and questionnaires a contact sport.
As for witness evidence, the Danish Administration of Justice Act provides that as an overruling point of departure, witnesses must appear in court in person and give testimony. There is little tradition for exchanging the statements of the vessel crew that are often obtained by the parties' legal counsel immediately after the incident giving rise to the case; and certainly not for producing these in court. Indeed, such statements have generally been thought to be inadmissible.
However, these principles work very poorly in the context of a maritime casualty or claim, whether big or small. When a vessel is stuck on a sand bank and endangers navigation, a bulk carrier is discharging wet grain and must depart for its next charter, or 200 smoked hams are spread all over the highway after a road accident, there is simply no time to observe protocol.
Accordingly, there is a strong tradition that survey reports, though obtained unilaterally, are admitted as evidence and relied upon to the extent the court believes they are accurate. Similarly, the Danish Supreme Court has altered the traditional view on the admissibility of unilateral expert reports in non-marine cases as well. Accordingly, the state of the law today may be summarized so that unilateral expert reports may be produced in evidence in a marine casualty heard before the Danish courts, provided that the report was obtained before legal proceedings in Denmark were commenced, and in appropriate circumstances even after proceedings have begun. The evidential value of these reports will be assessed when the court prepares its judgment1.
Similarly, the rules concerning witness evidence seem to be changing as well. In a recent decision, statements of the crew prepared by legal counsel for the vessel owners were introduced in an ongoing case. The Danish Maritime and Commercial High Court allowed for these statements to be produced in court prior to the trial. The statements form part of the vessel owners' evidence. The court observed that the evidential value of such statements is likely to be small, however, unless they are backed up by actual testimony of the crew members2.
It follows that the court may attach very little or no importance at all to these statements; nevertheless, they were allowed as evidence.
The explanation for the apparent difference between the letter of the law and the findings of the court is probably found in another basic principle of Danish procedural law. The assessment of evidence before the court is "free" in the sense that the court may assess the credibility of evidence and what weight any given piece of evidence will have in a case entirely at its discretion. There are no rules ranking evidence or barring e.g. hearsay evidence. Why then, would the court wish to limit its access to information available on the case before it actually considers the case? The judge(s) can always discard such evidence entirely once they decide which judgment to pass.
It follows that the evidence that is usually obtained in a maritime casualty – survey reports, statements, documents, AIS/VDR data, photographic evidence etc. should be obtained in the usual manner and as quickly as possible, before it may be lost and memories fade. It is likely that this evidence will be admitted.
However, the devil is often in the detail. Admissibility does not mean that the day is won. As suggested above, the court admits evidence in order to shed as much light on case as possible, but may reject it completely when making its final findings and judgment.
It is worth considering, therefore, whether anything can be done to improve the quality of this evidence. It goes without saying that if unilateral evidence can be obtained in a way that emulates as closely as possible the Danish procedural rules for obtaining expert and witness evidence, the court is more likely to give weight to this evidence when assessing the case.
Notice to the prospective opponents what steps are being taken, invitations to joint surveys, advice when and where they can make their own inspections and notification before taking steps that will lead to evidence being lost is evidence is recommended; as is giving such notice in writing and keeping a copy of it, something which is forgotten surprisingly often.
Further, it is worthwhile to consider what the evidence that is being obtained is intended to prove. There is a fine line between obtaining evidence of fact that will otherwise be lost and obtaining evidence that may be asked of a joint expert at any time afterwards. A survey report that proves the manner of stow in a cargo hold is therefore likely to be admitted, but an assessment whether the stow was in accordance with good practice may be an issue to be considered by a joint expert at a later stage.
All this may be avoided if the issues arising out of the casualty are to be decided in another forum than the Danish courts. But where the casualty gives rise, in particular, to claims in tort or the cargo affected was going out of or into Denmark, this may not be given or, indeed, possible.
Accordingly, as Danish law contains a number of pitfalls such as those described above, it is recommended that the people on the ground obtaining evidence in the wake of a marine casualty in Denmark have insight into the quirks of Danish law.
- See the Supreme Court Decisions UfR 2011.151H, UfR 2011.479H, UfR 2011.3074H and the decision of the Maritime and Commercial High Court in FED 2015.1.
- See FED 2015.55SH