Evidentiary matters
Standard of proof, onus, and the submission and assessment of evidence
The main rule is that a claim must be substantiated on the balance of probabilities, and that the burden of proof lies with the party asserting the factual basis for the claim.
However, the standard of proof may be stricter and the onus may shift depending on 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, provide an example of the first. Such claims, e.g. for damages relating to 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.
The legal basis for the claim may in itself provide for a reversed burden of proof, but more commonly the burden may shift because the claimant has produced sufficiently convincing evidence in support of the claim. To successfully contest the claim, the respondent must then either present evidence to the contrary or rebut the claimant’s evidence.
Evidence may take the form of documentary evidence, witness testimony and, although more unusual, physical items and site-inspections. In principle, all forms of evidence carry equal weight. The court is unrestricted in its assessment, and few objective criteria govern the court's weighting and evaluation of the conflicting evidentiary facts. As such, Norwegian procedural law does not recognise the best evidence rule or the hearsay evidence rule.
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 at a party's own initiative, or at the opponent's request. If the request for access to evidence concerns admissible evidence and is sufficiently specified, and neither disproportionate, nor irrelevant, the other party is required to grant access. Importantly, the required specification and scoping of such requests for access to evidence imply 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 reply or any subsequent written submissions. Any evidence shall upon submission be accompanied by a brief description of what such evidence is meant to demonstrate.
The court will generally not intervene in the parties' submission of evidence unless one of the parties moves for such intervention. Disputes on evidentiary issues, usually concerning the obligation to grant access to certain pieces of evidence, may arise during the preparatory stage. Such disputes are normally decided on written briefs only, and may be appealed like any other court ruling.
In granting access, and by disclosing evidence at their own initiative, the parties comply with their duty to ensure that the factual basis of the case is correctly and completely elucidated. A breach of this duty is generally not sanctioned by fines or other formal penalties, 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 as any information carrier may potentially be considered as evidence, and without leave or other preceding court evaluation of the significance of such evidence. Although evidence rules stipulate that the parties may only present evidence about facts which may be of importance, and that the scale and extent of the evidence invoked shall be proportionate to the size and significance of the matter in dispute, these rules are in practice only formally 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 does not need to take the form of an express written statement – if a party for example chooses to disclose a selection of emails from the attorney, or calls the attorney as a witness, the privilege is considered to have been lifted 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 relevant parts of the documents before these are disclosed, and witnesses may refuse to testify on their contents. The court may, however, order the information to be disclosed if it finds it necessary to rule on the matter, usually at the request of the opponent. A party requested to disclose commercially sensitive evidence may, on the other hand, move for such evidence to only be presented 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 rendered orally. Moreover, the principle of direct presentation of evidence implies that the court may only consider evidence that has been presented by the parties during the main hearing.
Expert witnesses
Each party may, at its own initiative, call expert witnesses to render oral testimony in support of their 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").
Usually, the remit of the expert witness is defined in 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.
One notable difference is, however, that the expert witness is permitted to attend the hearing in its entirety. Another difference is that the expert witness may examine parties or witnesses.
In addition to expert witnesses appointed by the parties, the court may appoint an expert witness either at its own initiative or at the request of a party. 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' legal cost claims.
Securing of evidence prior to instituting legal proceedings
A party may obtain an order to secure evidence prior to instituting legal proceedings, if the party can substantiate the existence of a potential underlying claim, and show that there is either a demonstrable risk of evidence being destroyed unless secured, or that securing of evidence is warranted for other reasons.
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 in itself be detrimental. If such a request is granted, the court will thus base its ruling on the requesting party's submissions alone and execute the securing of evidence without giving advance notice to the opponent. The opponent's arguments against securing of evidence will in these situations be heard by the court in a subsequent oral hearing, if requested by said party.
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 regularly necessary. 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 firm or an accounting firm.
The third party usually reviews the materials in accordance with terms of reference that are either agreed between the parties or decided by the court, and screens out any inadmissible evidence or documents falling outside the scope of the terms of reference. The remaining, relevant materials are thereafter disclosed to the requesting party.
A notable consequence of applying this procedure is that the requesting party carries 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 the request is filed until the evidence is disclosed, depending, of course, on the volume of the materials secured. Due to the cost exposure and time normally spent in connection with securing of evidence, the procedure is in practice reserved for complex disputes that involve major claims.
