Evidentiary matters
Standard of proof, onus, and the submission and assessment of evidence
The general rule is that a claim must be proved on the balance of probabilities, and that the burden of proof lies with the party asserting the factual basis of the claim.
However, the standard of proof may be stricter and the onus may shift depending on the nature of the claim and the strength of the evidence produced. Civil claims based on allegations of wrongdoing that would be tantamount to a criminal offence or other reprehensible conduct, provides an example of the former. Such claims, e.g. for damages arising from fraud, are subject to a stricter standard of proof, under which the court must be satisfied by clear and convincing evidence to lawfully rule in the claimant's favour.
Evidence may take the form of documentary evidence, witness testimony and, although less common, physical items and site inspections. In principle, all forms of evidence may be given equal weight; the courts are free to decide in each case how much weight should be given to any form of evidence. No type of evidence will automatically take precedence. The court is unrestricted in its assessment of evidence. Accordingly, Norwegian procedural law does not recognise a "best evidence rule" and hearsay evidence is allowed. The Supreme Court has repeatedly held that contemporaneous evidence generally carries considerable weight, whereas after-the-event statements by persons connected with the parties, particularly where inconsistent with the contemporaneous record, should be accorded little weight.
In commercial disputes, it generally falls to the parties – and not the court – to decide what evidence to present and invoke. Evidence may be disclosed on a party's own initiative, or at the opponent's request. If the request for access to evidence concerns admissible evidence and is sufficiently specific, and neither disproportionate nor irrelevant, the other party is required to give access. Importantly, the required specificityu and scope of such requests for access to evidence mean that the Anglo-American concept of "discovery" has no parallel under Norwegian procedural law.
Evidence must be submitted during the preparatory stage of the proceedings. In practice, this means that witness lists and all relevant documentary evidence must be presented and appended to the writ, the response or any subsequent written submissions. Upon submission, any evidence shall be accompanied by a brief description of what it is intended to demonstrate.
The court will generally not intervene in the parties' submission of evidence unless one of the parties applies for such intervention. Disputes regarding evidentiary issues, usually concerning the obligation to disclose relevant evidence, may arise during the preparatory stage. Such disputes are normally decided on written submissions only, and may be appealed.
By granting access to, and voluntarily disclosing evidence, the parties fulfil their duty to ensure that the factual basis of the case is fully and accurately elucidated. A breach of this duty is generally not sanctioned, but a failure to disclose evidence may instead be taken into consideration in the court's assessment of the facts of the case.
The Norwegian rules on admissible and inadmissible evidence differ from those of certain other jurisdictions in that any medium may potentially constitute evidence, without leave or prior judicial evaluation of its significance. Although the rules on evidence stipulate that the parties may only present evidence of facts that may be relevant to the outcome of the case, and that the scale of the evidence adducted should be proportionate to the size and significance of the dispute, these rules are largely guiding principles.
Some evidence is, however, inadmissible because of its contents or nature. One important example is correspondence and oral information that is subject to attorney-client privilege. Such documents may not be disclosed without the client's consent. Consent need not take the form of an express written statement – if a party, for example, chooses to disclose a selection of emails from their lawyer, or calls the lawyer as a witness, the privilege is considered to have been waived for related correspondence and documents as well.
Another significant example is the protection afforded to trade or business secrets. Such secrets are usually protected by redacting the relevant parts of the documents before disclosure, and witnesses may refuse to testify as to their contents. The court may, however, order disclosure of the information if it finds it necessary to rule on the matter. A party requested to disclose commercially sensitive evidence may, on the other hand, apply for such evidence to only be presented in private (in camera), i.e. without public access.
Norwegian procedural law adheres to the principle of direct presentation of evidence, i.e. that the presentation of evidence shall take place in an oral hearing before the court. In practice, this means that documentary evidence is read out loud, that items are shown to the court either in depicted or physical form, and that witness testimony is given orally. Moreover, the principle of direct presentation of evidence means that the court may only consider evidence that has been presented by the parties during the main hearing.
Expert witnesses
Each party may, on its own initiative, call expert witnesses to render oral testimony in support of its factual assertions. Expert witnesses are most commonly called in cases involving complex or technical issues of which the court cannot be expected to have in-depth knowledge. Expert testimony regarding legal questions generally requires the consent of both the parties and the court, cf. the maxim of iura novit curia ("the court knows the law").
Typically, the remit of the expert witness is defined by terms of reference issued by the instructing party, which form the basis for a written opinion containing the expert's professional assessments and conclusions. During the oral hearing, an expert witness is generally treated as an ordinary witness and is, as a general rule, subject to the same rules on examination and cross-examination by the parties and the court.
However, one notable difference is that the expert witness is permitted to attend the hearing in its entirety and may also be entitled to ask questions to witnesses of fact and other expert witnesses.
In addition to expert witnesses appointed by the parties, the court may appoint an expert witness either on its own initiative or at a party's request. The court provides its appointed expert witness with terms of reference, which are either prepared by the court alone or in conjunction with the parties. The expert's assessments and findings shall, as a main rule, be submitted to the court in a written opinion.
The costs and expenses relating to expert witnesses may be included in the parties' claims for legal costs.
Securing of evidence prior to instituting legal proceedings
A party may obtain an order for securing of evidence before commencing legal proceedings, if it can substantiate the existence of a potential underlying claim, and show either a real risk of evidence being destroyed unless secured, or that securing of evidence is otherwise warranted.
The securing of evidence may be ordered without an adversarial process if the party seeking the order is able to show that notice of the request may itself be detrimental. If such a request is granted, the court will accordingly base its ruling on the requesting party's submissions alone and carry out the securing of evidence without giving advance notice to the opponent. In these circumstances, the opponent's arguments against securing evidence will be heard at a subsequent oral hearing, if that party so requests.
The evidence is normally secured by seizure of physical documents and by making mirror backups of hard drives. Enforcement officers will assist, as gaining access to private premises is often required. Since documents and emails may contain sensitive and privileged information, the secured materials are usually handed over to a third-party reviewer appointed by the court; usually a law or accountancy firm.
The third party usually reviews the materials in accordance with terms of reference that are either agreed between the parties or determined by the court, and screens out any inadmissible evidence or documents falling outside the scope of the terms of reference. Thereafter, the remaining relevant materials are disclosed to the requesting party.
A notable consequence of applying this procedure is that the requesting party bears all costs and expenses incurred in the process, including the opponent's legal expenses for challenging the request, regardless of the outcome. Furthermore, it may take years from when the request is filed until the evidence is disclosed, depending, of course, on the volume of the materials secured. Given the cost exposure and time normally associated with securing of evidence, the procedure is in practice reserved for complex disputes that involve substantial claims.
