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NOU 2001: 32

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Draft statute and summary in English

1 Draft statute

Table of contents Part I – Basic provisions for dealing with civil cases

  • Chapter 1: The purposes and application of the Dispute Act

  • Chapter 2: Parties, procedural capacity and legal representatives

  • Chapter 3: Counsel and of counsel

  • Chapter 4: Substantive and local jurisdiction

  • I Substantive jurisdiction

  • II Local jurisdiction (Venue)

  • Chapter 5: How the court relates to procedural steps of the parties. Administration of cases and guidance

Part II - Obligations prior to bringing legal action. Non-judicial and judicial mediation

  • Chapter 6: Obligations prior to bringing legal action. Non-judicial mediation

  • I General

  • II General obligations of the parties

  • III Non-judicial mediation

  • Chapter 7: Mediation and judicial mediation before ordinary courts

  • I Amicable settlement and mediation

  • II Judicial mediation

  • III In-court settlement

  • Chapter 8: Proceedings before the Conciliation Board

Part III – The proceedings in the court of first instance

  • Chapter 9: Ordinary procedure

  • Part I General

  • Part II The preparation of the case

  • Part III – The main hearing

  • Chapter 10: Small claims procedure

Part IV - Recourse

  • Chapter 11: Appeal to the Court of Appeal

  • Chapter 12: Appeal to the Supreme Court

  • Chapter 13: Reopening

Part V – General provisions

  • Chapter 14: Valuation

  • Chapter 15: Joinder

  • Chapter 16: Written submissions

  • Chapter 17: Court sittings and court records

  • I Court sittings

  • II Court records

  • Chapter 18: Right of inspection

  • Chapter 19: Stay of proceedings

  • Chapter 20: The consequenes of legal action etc.

  • Chapter 21: Judicial rulings

  • I Format and procedure

  • II The contents of the ruling

  • III Rectification, supplementory judgement and reversal

  • IV Enforceability and legal force

  • Chapter 22: Negligence during legal proceedings

  • Chapter 23: Costs

Part VI - Evidence

  • Chapter 24: General provisions on evidence

  • Chapter 25: Evidence prohibitions and evidence exemptions

  • Chapter 26: The obligations of the parties to attend and to make statements

  • Chapter 27: Testimonial evidence

  • Chapter 28: Testimonial evidence from experts

  • Chapter 29: Real evidence

  • Chapter 30: The taking of evidence within a lawsuit

  • Chapter 31: The securing of evidence outside a lawsuit

Part VII – Special types of procedure

  • Chapter 32: Class action

  • Chapter 33: Cases concerning administrative decisions relating to coercion

Part I – Basic provisions for dealing with civil cases Chapter 1. The purposes and application of the Dispute Act

§ 1-1 The purposes of the Act

(1) The Act relating to the Resolution of Disputes shall provide a basis for dealing with legal disputes in a fair, sound, swift and confidence inspiring manner through public proceedings before independent and impartial courts. The Act shall attend to individual dispute resolution needs as well as the need of society to have its laws respected and clarified.

(2) In order for the purposes under (1) to be achieved:

  • each party shall be permitted to argue its case and to present evidence,

  • each party shall be permitted access, as well as the opportunity to respond, to the arguments and evidence of the opposite party,

  • each party shall at one stage of the proceedings be permitted to argue its case orally, as well as to make a first-hand presentation of its evidence, before the court,

  • the procedure and costs involved shall be in reasonable proportion to the importance of the case,

  • differences between the parties in terms of resources shall not be decisive to the outcome of the case,

  • grounds shall be given for important rulings, and

  • rulings of special importance shall be open to review.

§ 1-2 The relevance of international law to the application of the Act

The provisions of this Act shall apply subject to such limitations as are recognised in international law or which derive from any agreement made with a foreign State.

§ 1-3 The subject matter and character of legal action

(1) Action before the courts may be brought in respect of legal claims.

(2) The party bringing the action must establish a genuine need for having the claim determined as against the respondent. Weight shall be attached to the relevance of the claim and to the connection of the parties to the claim.

§ 1-4 Extended right of legal action for organisations and associations etc.

(1) Organisations and associations may institute legal proceedings in their own names on behalf of their members, provided that the action falls within the purpose of the organisation.

(2) Public bodies charged with promoting specific interests may in the same manner institute legal proceedings in order to attend to the purpose with which the body has been charged.

§ 1-5 Against whom legal action concerning the validity of public decisions should be directed

(1) Legal action concerning the validity of an administrative decision shall be directed at the decision by the more senior administrative body in the case, unless otherwise provided by statute.

(2) If the claimant disputes the validity of an administrative decision bestowing rights on a third party, and the claimant’s interest in claiming invalidity necessitates the third party not being able to exercise such right, the legal action shall also be directed against the said third party. The provisions of this section shall not apply if otherwise provided by statute.

Chapter 2. Parties, procedural capacity and legal representatives

§ 2-1 On capacity to be a party to legal action

(1) The following have the capacity to be a party to legal action:

  • (a)any natural person,

  • (b)the State, municipal administrations and county administrations,

  • (c)companies, including limited companies, general partnerships and limited partnerships,

  • (d)cooperative societies, savings banks and foundations,

  • (e)estates in bankruptcy and estates of deceased persons under public administration,

  • (f)independent state-owned enterprises, and

  • (g)other entities if specifically provided by statute.

(2) Other entities than mentioned in (1) have capacity to be a party to legal action to the extent thus concluded on the basis of an overall assessment, with special weight being attached to:

  • whether the entity has a permanent organisational structure,

  • whether there exists an executive committee or other body representing the entity externally,

  • whether the entity has a formalised arrangement for membership,

  • whether the entity has funds of its own, and

  • the purpose of the entity and the subject matter of the legal action.

§ 2-2 Procedural capacity

(1) Procedural capacity is the capacity to act on behalf of oneself in a lawsuit, including bringing and being the respondent to legal action.

(2) Persons of legal age have procedural capacity unless otherwise provided below. The same shall apply to a foreigner who according to the law of his domicile is not of legal age, provided that he would be of legal age according to Norwegian law.

(3) Persons adjudicated incompetent and minors do not have procedural capacity, unless procedural capacity has been granted them by force of special statute.

(4) A person of legal age who due to his state of mental health is unable to take care of his own interests during the case, does not have procedural capacity. If such person does not have a provisional guardian, the court shall see to it that such guardian is appointed.

(5) The case may be dismissed, provided that it is beyond doubt that it cannot serve any sensible purpose, and further provided that it has been brought by a person who abuses the court system by repeatedly having brought such cases.

§ 2-3 Legal representative

(1) For parties without procedural capacity and (artificial) legal entities, the legal representative shall attend to (see (4) below) all rights and obligations of the party concerning the lawsuit. A party may only have one legal representative at a time.

(2) The guardian shall be the legal representative of persons adjudicated incompetent. Section 4 of the Guardianship Act shall apply if the parents of such a person are joint guardians. If the legal action relates to property under the administration of the public guardian’s office, service of process shall be made on the public guardian’s office. The public guardian’s office shall be entitled to join the case. Procedural steps taken by the public guardian’s office shall benefit the person adjudicated incompetent, even if they are contrary to the procedural steps taken by the person adjudicated incompetent.

(3) The provisional guardian shall be the legal representative of persons of legal age lacking procedural capacity pursuant to section 2-2(4).

(4) The legal representative of legal entities shall be the person having the capacity to receive service on behalf of such legal entity, cf. section 191 of the Courts of Justice Act. The executive committee shall appoint the legal representative if more than one person has such capacity. The legal representative may delegate the power to act as legal representative to a different person who is employed by the legal entity or affiliated with this part of the undertaking. Such delegation may apply to an individual case or to specific types of cases, and shall be made in writing. Such delegation cannot limit the rights of the representative pursuant to paragraph (1).

Chapter 3. Counsel and of counsel

§ 3-1 Entitlement to use counsel

(1) A party is entitled to be represented by counsel.

(2) A party may only be represented by one counsel at a time. The court may permit a party to be represented by more than one counsel, provided that there are special reasons for doing so. If more than one counsel is present at court sittings, the court as well as the opposite party shall be informed in advance as to whom is entitled to take procedural steps on behalf of the party at any given time.

(3) Wherever this Act employs the term party the provision in question shall apply correspondingly to the counsel, unless specifically provided or dictated by the context that the procedural right or obligation in question is incumbent on the parties in person.

§ 3-2 Obligation to use counsel

If a party without counsel is unable to present the case in a comprehensible manner, the court may order the party to be accompanied by counsel.

§ 3-3 Requirements for acting as counsel

(1) Advocates who are entitled to conduct cases before the Supreme Court shall be engaged as counsel in cases involving oral proceedings in the Supreme Court.

(2) Any advocate may be engaged as counsel in cases involving written proceedings in the Supreme Court pursuant to section 12-10(4) and in cases before the other courts.

(3) Wherever this Act employs the term advocate such term also includes authorised deputy advocates, except as otherwise provided by section 223, first paragraph, of the Courts of Justice Act. Deputy advocates may act as counsel in cases involving oral proceedings in the Court of Appeal by special permit of the court.

(4) With the exception of cases referred to under paragraph (1), the court should normally permit one of the close relatives of the party to act as counsel. If the dispute relates to business undertakings, the same shall apply to employees and other persons affiliated with the relevant part of the undertaking. The court may under all circumstances permit another suitable person of legal age to act as counsel. Persons involved in the commercial or regular provision of legal services may only act as counsel if they meet the requirements of section 218 of the Courts of Justice Act.

(5) A foreign advocate may act as counsel if the court finds this unobjectionable in view of the nature of the case and other circumstances.

(6) The King shall by regulations prescribe provisions concerning the extent to, as well as the conditions under, which advocates domiciled in other EEA States are entitled to act as counsel.

§ 3-4 Authority to represent a party in legal proceedings as counsel

(1) Counsel may take any procedural steps on behalf of his party. Any limitations on the authority to represent a party in legal proceedings as counsel shall not be binding on the court or the opposite party.

(2) An advocate is not obliged to present evidence of the granting of authority unless the court finds reason to so demand. Other counsel shall present a document confirming the granting authority unless the party is present in person and confirms the granting of authority. Even if the due and valid granting of authority is insufficiently established, the proceedings of the case may commence, if adjournment would cause damage.

§ 3-5 The relationship between the actions of the party and those of counsel

(1) The party is entitled to act alongside counsel.

(2) The actions and omissions of counsel shall count both in favour of and against the party.

(3) A party who is present in court shall be bound by the actions of counsel unless such party immediately raises an objection.

(4) A party who is not present in court shall be bound by the actions of counsel, cf. section 3-4(1).

§ 3-6 Resignation and withdrawal from acting as counsel

(1) An authority to represent a party in legal proceedings as counsel may be revoked at any time. The revocation shall be binding on the court and the opposite party only when notice of revocation has been given.

(2) Counsel shall be entitled to withdraw from representing a party in legal proceedings. Counsel withdrawing shall be under an obligation to take such procedural steps as cannot be postponed without exposing the party to loss.

§ 3-7 Of counsel

(1) A party shall be entitled to be assisted by of counsel during legal proceedings. Of counsel shall satisfy the conditions for acting as counsel pursuant to section 3-3.

(2) The court shall determine the extent to which of counsel shall be permitted to address the court and examine parties or witnesses alongside or in place of counsel.

(3) What is conveyed by of counsel shall count both in favour of and against the party, unless the party objects to it on the spot.

Chapter 4. Substantive and local jurisdiction I Substantive jurisdiction

§ 4-1 Substantive jurisdiction

(1) The Conciliation Boards deal with cases referred to in section 8-2.

(2) The Municipal Courts deal with cases referred to in section 9-1

(3) The Courts of Appeal deal with appeals referred to in section 11-1 as well as with cases at first instance where specifically provided.

(4) The Supreme Court deals with cases referred to in section 12-1.

II Local jurisdiction (Venue)

§ 4-2 International venue

(1) Disputes in international matters may only be brought before the Norwegian courts if the matter at hand has a sufficiently strong connection to Norway.

(2) If no venue can be established pursuant to sections 4-3 and 4-4 below, but the case is still subject to Norwegian jurisdiction, legal action may be brought before the Oslo City Court. If the respondent has an asset in the realm which may by applied to cover the claims of the claimant, legal action may instead be brought before the cowls of the place where the asset is located.

§ 4-3 Ordinary venue

(1) Legal action may be brought in the ordinary venue of the respondent.

(2) The ordinary venue of natural persons is where they have their habitual residence. A person maintaining habitual residence in several districts has an ordinary venue in each such district.

(3) Undertakings registered in the Register of Business Enterprises have their ordinary venue where the head office of the undertaking is located according to such registration. Foreign business undertakings maintaining a branch, agency or similar place of business in Norway have an ordinary venue where such place of business is located, provided that the legal action relates to activities at such place of business.

(4) The ordinary venue of the State is in Oslo. The ordinary venue of county administrations and municipal administrations is where their main administrative centre is located. The ordinary venue of independent state-owned enterprises is where their executive committee is seated.

(5) The ordinary venue of undertakings and amalgamations having no ordinary venue pursuant to paragraphs (3) or (4), shall be the same as the ordinary venue of the person on whom the claim form shall be served.

§ 4-4 Venues which may be elected by the claimant

(1) Real property: Legal action relating to real property may be brought in the judicial district where the real property is situated. If the property is situated in more than one judicial district legal action may be brought in each of these judicial districts. This shall also apply if the legal action relates to more than one adjacent real property situated in different judicial districts.

(2) Contractual relationships: Cases relating to contractual relationships may be instituted where the obligation upon which the case is based has been performed or is to be performed. This does not apply to claims for the payment of money if the respondent has an ordinary venue in Norway pursuant to section 4-3.

(3) Damages in tort: Legal action for damages in tort, including compensatory damages and damages for non-pecuniary loss, as well as legal action directed at an insurer relating to cover for such damage, may be brought where the damage originated or where its effect occurred or may occur. If the effect has occurred in more than one place the case may be brought where the main effect has occurred.

(4) Claims against employers: Legal action by an employee directed at his employer in respect of claims based on an individual employee-employer relationship may be brought at the place of work or in place where the employee normally performs his work. If no such place exists the legal action may be brought at the place of business from where he was employed.

(5) Maritime relations: Legal action originating from maritime relations may be brought in the judicial district where the vessel’s port of registry is situated. If the vessel has been arrested, legal action relating to the claim for the payment of money secured by such arrest may be brought at the place where such arrest took place. This shall also apply if the vessel has been released or arrest has been avoided by the provision of security. Legal action directed at the shipmaster pursuant to section 73 of the Maritime Act as well as legal action directed at the shipmaster or crew relating to obligations incurred during service may be brought in the judicial district in which the vessel is docking at the time of service of process.

(6) Claims against heirs: Legal action directed at heirs may be brought where the deceased had his ordinary venue at the time of death. This does not apply if the estate is under public administration, if the administration of the estate has been completed or if more than 6 months have elapsed since the time of death.

(7) Consumer relations: A consumer who has entered into an agreement with a tradesperson with respect to goods or services for personal use may bring legal action directed at such tradesperson in his own ordinary venue. This does not apply if the agreement has been entered into by the consumer in person at such tradesperson’s permanent place of business.

(8) Cases directed at the State or county administrations: Legal action directed at the State may be brought in the ordinary venue of the claimants. Legal action directed at county administrations may be brought in such court in the county as is the ordinary venue of the claimant.

(9) Cases directed at insurance companies: Legal action directed at insurance companies with respect to payment by insurers under insurance policies may be brought in the ordinary venue of the claimant.

§ 4-5 Agreements respecting venue

(1) Legal action may be brought in the court agreed by the parties. Such an agreement may either exclude or be additional to the venues provided by sections 4-2 to 4-4.

(2) An agreement extending or limiting the international jurisdiction of the Norwegian courts shall be made in writing.

(3) An agreement between a consumer and a tradesperson limiting the scope for legal action beyond what is provided by sections 4-3 and 4-4 shall be made in writing, and is not binding on the consumer if the agreement has been entered into prior to the dispute coming into existence.

§ 4-6 Dealing with the issue of venue. Referral

(1) If legal action has been brought in a court which does not have local jurisdiction, such court shall refer the case to a court having local jurisdiction. If more than one court has local jurisdiction the claimant may elect to which court the case is to be referred.

(2) Section 38 of the Courts of Justice Act applies to the referral of a case to a different court.

(3) The case shall be summarily dismissed if no Norwegian court has local jurisdiction.

Chapter 5. How the court relates to the procedural steps of the parties. Administration of cases and guidance

§ 5-1 The basis upon which the court gives its rulings

(1) Rulings following a main hearing, an appeal sitting or a court sitting relating to small claims procedure are made on the basis of the court sitting as such. Written submissions shall form part of the basis for the decision only to the extent provided by statute.

(2) Other rulings are made on the basis of the case documents as well as the court sittings as such.

(3) The court shall not base the ruling on or on applications of the law in respect of which the parties have not had occasion to comment. In such case the court shall provide guidance to the parties pursuant to section 5-4, and if required proceed with the case pursuant to section 9-18(2).

§ 5-2 The position of the Court vis-à-vis the procedural steps of the parties

(1) The court may only rule on the claims put forward in the case. The ruling shall fall within the scope of the contentions submitted by the parties, and the court shall only base its ruling on the grounds for contention which have been invoked. The grounds for contention are the operative facts upon which a party is basing its contention.

(2) The court may only base its ruling on the evidence presented. The court shall only obtain and present evidence of its own accord to the extent specifically provided. The court is not bound by the arguments of the parties respecting evidence.

(3) The court shall, within the limitations pursuant to paragraph (1), apply current law of its own accord. It shall pursuant to section 1-1 ensure a satisfactory basis for the application of law. Provided that the application of law cannot otherwise be elucidated in a fully satisfactory manner, the court may determine that evidence shall be presented in respect of legal issues, or it may permit the parties to present such evidence. The court determines the scope of the presentation of evidence as well as the manner in which it is to be carried out. Legal reports occasioned by the case may only be presented as evidence with the consent of the other parties.

§ 5-3 Exemptions when the right of disposition of the parties is limited

In cases relating to matters of personal status and legal capacity, the legal status of children pursuant to the Child Act, administrative coercive decisions pursuant to Chapter 33 as well as in other cases where public interest considerations necessitate limitations to the parties’ right of disposition in respect of the legal action, the court is only bound by the procedural steps of the parties to the extent compatible with such public interest considerations. However, the court shall be limited to determining the claims put forward in the case.

§ 5-4 The court’s duty to provide guidance

(1) The court shall provide the parties with such guidance on provisions and routines respecting the proceedings of the case and other formalities, as is required for them to be able to attend to their interests in the case. The court shall seek to prevent errors and shall provide such guidance as is required for errors to be rectified. Section 22-1 shall apply to permission to rectify errors.

(2) The court shall promote the clarification of disputed issues, the elucidation of the contentions and positions of the parties as to factual and legal issues, as well as the provision of a sound basis for the ruling.

(3) The court may call upon a party to take a position on factual and legal issues which appear to be of importance to the case, as well as to offer evidence.

(4) The court shall during the proceedings show particular consideration for the need for guidance of parties not represented by counsel.

(5) The court shall provide its guidance in a manner which is not liable to diminish confidence in its impartiality. The court shall not advise the parties regarding which position they should take on disputed issues in the case, nor regarding which procedural steps they should take.

§ 5-5 The duty of the court to take an active part in the administration of a case

(1) The court shall prepare a plan for dealing with the case, and follow up on it in order for the case to be brought to a conclusion in an efficient and sound manner.

(2) The court may set time limits for procedural steps pursuant to the provisions of section 140 of the Courts of Justice Act as well as Chapter 8, and otherwise give such rulings as are required for dealing with the case.

(3) In each case, a judge shall be assigned to prepare the case for trial and to administer the case.

(4) At court sittings and deliberations where the court sits with more than one judge, the presiding judge is in charge of the proceedings according to section 123 of the Courts of Justice Act.

§ 5-6 Reactions in case of insufficient administration of a case

(1) The administrator of the court shall ensure that the duty to take an active part in the administration of the case pursuant to section 5-5 is followed up on, and shall make such orders as are required for the rectification of deficiencies in terms of neglected or delayed administration of the case. A party may demand that the administrator of the court intervenes pursuant to this paragraph.

(2) In case of material neglect of duties pursuant to section 5-5, the administrator of the court shall transfer the case to another judge or take over the case himself, if required in order to deal with the case in a proper manner in the following.

(3) The decision of the administrator of the court may be appealed. The appellate court has the same powers as the administrator of the court to rule on the administration of the casepursuant to paragraph (1) and (2), and may also refer the case to another court.

(4) If the administrator of the court is the preparing judge, or if the administrator of the court is incompetent, an application pursuant to paragraph (1) shall be ruled on by the immediately superior court. The same applies on request by a party if the administrator of the court has not made any ruling within one month of an application pursuant to paragraph (1) having been submitted. Paragraph (3) shall apply correspondingly.

Part II – Obligations prior to bringing legal action. Non-judicial and judicial mediation. Chapter 6. Obligations prior to bringing legal action. Non-judicial mediation I General

§ 6-1 Scope

This Chapter applies to dealing with legal disputes prior to legal action being brought before the Municipal Court pursuant to Chapter 9 or 10.

II General obligations of the parties

§ 6-2 Notice of claim and the basis for the claim

(1) Prior to bringing legal action the party shall notify whoever such legal action may be brought against in writing. The notification shall present the claim which may be brought before the court as well as the basis for such claim. The notification shall call upon the opposite party to respond to the claim as well as its basis.

(2) Whoever receives notification that a claim may be brought before the courts, shall within a reasonable period of time respond to the claim and its basis. If the claim is contested in whole or in part, the party shall specify upon which basis it is contested. If such party is of the opinion that he has a claim against the party who made the notification, he shall at the same time provide notification of his claim as well as the basis for such claim, and call upon the opposite party to respond to it.

§ 6-3 Obligation to provide information respecting evidence

Whoever provides notification of a claim or contests a notified claim, is obliged at the same time to provide information on important documents and other evidence of which he is aware and of which he cannot expect the opposite party to be aware. This applies irrespective of whether such evidence is in support of his position or that of the opposite party.

§ 6-3 A Clarification of the claim, its basis and relevant facts within specific areas of law

Minority proposal:

The King may, in respect of specific types of claims, by regulations specify the obligations of the parties to clarify the claim and its factual basis in more detail.

§ 6-4 Attempt at amicable settlement

The parties shall attempt to reach an amicable settlement of the dispute prior to bringing legal action, if necessary through conciliation before the Conciliation Board, by non-judicial mediation or by bringing the dispute before a non-judicial dispute resolution board.

III Non-judicial mediation

§ 6-5 Agreement on non-judicial mediation

(1) The parties may in respect of a dispute which has arisen agree on non-judicial mediation pursuant to the Dispute Act. The agreement shall be made in writing, and shall specify that the provisions of the Dispute Act relating to non-judicial mediation shall be applied.

(2) The parties may at any time demand that the non-judicial mediation be concluded.

§ 6-6 The mediator

(1) The parties may agree on who shall act as mediator, or agree on the procedure for appointing the mediator. At the request of the parties, the Municipal Court shall appoint a mediator from the court’s panel of judicial mediators. The request shall be made in writing and shall be signed by both parties. The request shall state what the dispute concerns. If the court declines to appoint a mediator, such decision may be appealed by the parties acting jointly. Section 11-3(3) does not apply.

(2) The mediator may with the consent of the parties make use of an assistant. The parties may demand that the court also appoints the assistant, who need not be appointed from the court’s panel of judicial mediators.

(3) Mediators and assistants may make their participation in the non-judicial mediation contingent upon advance payment or security in respect of their entitlement to compensation pursuant to section 6-8. More detailed provisions regarding mediators and assistants appointed by the court shall be provided by regulations.

§ 6-7 How the mediation takes place

(1) The party shall himself participate in the non-judicial mediation, or be represented by a person authorised to enter into an amicable settlement agreement.

(2) The mediator shall adhere to the agreement of the parties as to the procedure for the non-judicial mediation, as long as this leads to it being dealt with in a proper manner.

(3) In the absence of agreement on the procedure to be followed, the procedure shall be determined by the mediator in consultation with the parties. Meetings with the parties may be held jointly or separately. The mediation shall be impartial. The mediator shall act in an impartial manner and promote an amicable settlement. The mediator may present proposals for resolving the matter, as well as express strengths and weaknesses as to the legal and factual arguments of the parties.

(4) A record shall be kept of the mediation, specifying the participants from each side. If a third party makes a statement, his identity shall be recorded. A party making a settlement offer may demand that it be recorded.

(5) Non-judicial mediation shall be concluded by an amicable settlement being reached, by the mediator stating that further mediation is considered inexpedient or by one or both parties declaring that they do not wish further mediation. It shall be stated in the record that the mediation has been concluded.

(6) Section 7-6(1) and (2) on prohibited evidence and duty of confidentiality following judicial mediation applies correspondingly to non-judicial mediation pursuant to this Chapter.

§ 6-8 The remuneration of the mediator

(1) The mediator and the assistant referred to in section 6-6(2) are entitled to remuneration for their work. Unless otherwise agreed, the parties are accountable for equal shares of the remuneration.

(2) It may be demanded that the court determines the remuneration of mediators and assistants appointed by the court. Provisions concerning remuneration shall be provided by regulations.

Chapter 7. Mediation and judicial mediation before the ordinary courts I Amicable settlement and mediation

§ 7-1 Amicable settlement of disputes before the courts

(1) The court shall at each stage of the case be aware of the possibility of having the legal dispute resolved amicably in full or in part through mediation or judicial mediation, unless the character of the case or other circumstances suggest otherwise.

(2) Before the Conciliation Board this takes place through mediation pursuant to the provisions of section 8-8.

§ 7-2 Mediation

(1) Mediation takes place by the court, at a court sitting or through other contact with the parties, attempting to provide a basis for an amicable settlement. During mediation the court shall not hold separate meetings with each party, nor receive information which cannot be communicated to all parties involved. The court shall not present proposals for a solution, offer advice or express points of view which may weaken the impartiality of the court.

(2) If the parties reach agreement, the settlement may be concluded in the form of an in-court settlement pursuant to section 7-8.

II Judicial mediation

§ 7-3 Judicial mediation

(1) The court may decide that judicial mediation pursuant to sections 7-4 to 7-6 shall be undertaken in place of or in addition to mediation pursuant to section 7-2.

(2) In giving such ruling, weight shall be attached to the attitude of the parties towards judicial mediation as well as the scope for reaching settlement or simplification of the case. Weight shall also be attached to whether judicial mediation may be inappropriate due to differences in the relative strength of the parties, the costs of judicial mediation, previous attempts at mediation or other considerations.

§ 7-4 The judicial mediator

(1) The preparing judge in the case, one of the other judges of the court or a person from the court’s panel of judicial mediators may act as the judicial mediator. The court may with the consent of the parties appoint a judicial mediator not included in the panel pursuant to paragraph (4). The court may also with the consent of the parties appoint an assistant to the judicial mediator.

(2) Judicial mediators and assistants as referred to under paragraph (1), third sentence, are subject to the same requirements as to impartiality as those applying to judges. An appointment of a judicial mediator from the panel pursuant to paragraph (4) or outside the panel pursuant to paragraph (1), second sentence, or the appointment of an assistant pursuant to paragraph (1), third sentence, may be appealed on the grounds that such judicial mediator is incompetent.

(3) A judicial mediator or an appointed assistant to the judicial mediator shall be entitled to remuneration determined by the court, unless he is a judge of such court. The amount of such remuneration shall be determined in accordance with the rates applicable for of legal aid, unless the judicial mediator or assistant and the parties have otherwise agreed. More detailed provisions on compensation shall be provided by regulations.

(4) The administrator of the court shall draw up a panel of judicial mediators. The panel of judicial mediators may be joint with another or several other courts. The composition of the panel should aim at covering the skills required for judicial mediation before the court, as well as ensuring that the judicial mediators on the panel have the personal qualities required. The obligation to draw up a panel of judicial mediators does not apply to the Supreme Court.

§ 7-5 The proceedings of the case during judicial mediation

(1) Judicial mediation takes place separate from court sittings. The judicial mediator determines the procedure in consultation with the parties. Meetings with the parties may be held jointly or separately.

(2) The parties shall during judicial mediation be present themselves or be represented by counsel.

(3) The judicial mediator shall act in an impartial manner and promote an amicable settlement. The mediator may present proposals for resolving the matter, as well as express strengths and weaknesses as to the legal and factual arguments of the parties.

(4) The judicial mediator determines whether, as well as the extent to, if any, presentation of evidence shall take place duringjudicial mediation. Presentation of evidence cannot take place without the consent of the parties as well as the consent of whoever shall present evidence or provide a statement.

(5) The judicial mediator shall maintain a record of mediation meetings, specifying the court as well as the location of the mediation meeting, the case number, the names of the mediator, the parties and counsel, as well as whether the parties are present in person and, if applicable, who is representing them. The record shall show whether witnesses or experts have been examined, as well as their identity. A party making a settlement offer may demand that it be recorded. The record forms part of the case documents.

(6) If the parties reach agreement, the settlement may be concluded in the form of an in-court settlement pursuant to section 7-9.

§ 7-6 Prohibited evidence and duty of confidentiality

(1) The parties shall not be permitted, in the case or in other cases, to give testimony as to what took place or arose out of the judicial mediation. However, they shall not be precluded from presenting information relating to specific evidence which was referred to, and which has not otherwise been put forth, as well as proposals for an amicable settlement as recorded pursuant to section 7-5(5). They shall in other contexts refrain from disclosing matters which were conveyed to them on condition of confidentiality.

(2) Judicial mediators as well as others not falling within the scope of paragraph (1), shall refrain from disclosing what took place or arose out of the judicial mediation. However, they may give testimony as to whether an agreement entered into is in accordance with what was agreed during the judicial mediation.

§ 7-7 Further proceedings of the case if agreement is not reached

(1) If a case is not concluded during mediation, the proceedings before the court shall continue. The court shall to the extent possible seek to prevent failed judicial mediation from causing any delay in the progress of the case.

(2) A judge who has acted as judicial mediator in the case shall not participate in the further proceedings of such case. Section 109 of the Courts of Justice Act shall apply correspondingly.

III In-court settlement

§ 7-8 The entering into of an in-court settlement

(1) In-court settlements are recorded in the court record.

(2) The in-court settlement shall be signed by the parties as well as by the members of the court.

(3) If the settlement does not include provisions on the allocation of costs, the court shall at the request of the parties determine such allocation at its discretion.

(4) The court ensures that the settlement reflects what the parties have agreed in a precise manner, and that the settlement is not contrary to public interest considerations restricting the parties’ right of disposition in respect of the legal action, cf. section 5-3. If the settlement is to be enforceable, the court shall ensure that a time limit for performance is specified. Prior to it being entered into, the parties shall be informed of the effects of an in-court settlement, cf. section 5-4(1).

§ 7-9 In-court settlement during judicial mediation

(1) If an in-court settlement is made during judicial mediation, such settlement shall be entered in the record of the mediation meeting.

(2) Section 7-8(2) and (3) shall apply correspondingly. The judicial mediator shall sign the settlement and perform the functions of the court as specified in section 7-8(4).

§ 7-10 Effects of in-court settlements. Scope for setting aside in-court settlements

(1) In-court settlements shall be legally enforceable pursuant to section 21-13.

(2) In-court settlements may be declared invalid or be amended by judgement, pursuant to the provisions pertaining to invalidity and amendment of non-judicial agreements.

(3) Legal action pursuant to paragraph (2) shall be brought before the Municipal Court. In such case the claim with which the settlement is concerned shall be submitted for adjudication pursuant to the provisions of section 15-4.

(4) Legal action shall be brought within six months of such time as the party became, or ought to have become, aware of the grounds upon which invalidity is claimed. If such time limit is exceeded the case may be reinstated pursuant to the provisions of Chapter 22. No legal action concerning the invalidity of the settlement may be brought on the grounds of circumstances prevailing at the time of the settlement being entered into, more than ten years after such in-court settlement was entered into.

Chapter 8. Proceedings before the Conciliation Board

§ 8-1 The responsibilities of the Conciliation Board. Procedural provisions.

(1) Whoever wishes to institute legal proceedings shall bring the case before the Conciliation Board.

(2) The procedure before the Conciliation Board shall facilitate the parties achieving simple swift and inexpensive resolution of the case through conciliation or judgement.

(3) The provisions relating to ordinary procedure in Parts I, V and VI of the Act shall apply to the Conciliation Board as far as they are appropriate and this Chapter does not provide otherwise.

§ 8-2 Cases dealt with by the Conciliation Board

The Conciliation Board deals with cases which may be instituted by writ of summons to the Municipal Court pursuant to the provisions of this Act concerning ordinary procedure or small claims procedure. However, the Conciliation Board shall not deal with

  • (a)cases relating to family law, except for cases solely concerned with financial settlement in respect of termination of matrimonial cohabitation,

  • (b)cases directed at a public authority, institution or official concerning matters which are not exclusively of a private law nature,

  • (c)cases concerning the validity of an arbitration award or an in-court settlement,

  • (d)cases decided on by a tribunal, if provided by statute that the decisions of such tribunal shall be binding on the parties unless the case is brought before the courts, nor

  • (e)other cases in respect of which it has been specifically provided that conciliation before the Conciliation Board shall not take place.

§ 8-3 Application for conciliation proceedings

(1) A case shall be brought before the Conciliation Board by way of complaint. The complaint shall be submitted orally or in writing to the Conciliation Board pursuant to the provisions of Chapter 16.

(2) The complaint shall specify:

  • (a)which Conciliation Board the case is being brought before,

  • (b)the names and addresses of the parties, and those of any counsel or legal representatives pursuant to section 2-3,

  • (c)the claim being brought and a prayer for relief specifying the outcome the claimant is requesting by way of judgement, and

  • (d)the grounds for the claim in brief.

(3) Copies of documents upon which the claim is directly based should be attached. If the claimant is claiming compensation for costs relating to non-judicial debt collection, the request for payment pursuant to section 10, cf. section 12, of the Debt Collection Act shall be attached.

(4) If the Conciliation Board does not have jurisdiction over the case, the complaint shall be summarily dismissed. The claimant shall first be permitted to rectify, pursuant to section 22-1, those errors which are capable of rectification. A claim submitted to a Conciliation Board not having jurisdiction pursuant to the provisions of Chapter 4, shall be referred to the relevant Conciliation Board pursuant to section 4-6.

§ 8-4 reply

(1) If the Conciliation Board proceeds with the case, the complaint shall be served on the respondent together with an order to file a reply normally within two weeks. The reply shall be submitted orally or in writing pursuant to the provisions of Chapter 16. The Board shall provide necessary guidance as to the mandatory contents of the reply and as to the consequences of a reply not being filed within the time limit or it being inadequate.

(2) In his reply the respondent shall state whether the claim put forth in the complaint is accepted or contested, whether he demands that a summons for conciliation be made even if the claim is accepted, and whether he has objections against the Conciliation Board dealing with the case. If the claim is contested, the reply should also include brief grounds for the position of the respondent. Copies of important documents should be attached.

(3) If the reply is not submitted in time, and the respondent is not assumed to have a valid excuse pursuant to section 22-8(2) concerning failure to respond, judgement by default shall be passed provided that the conditions for doing so are fulfilled. If the respondent must be assumed to have a valid excuse for failing to respond, the Board shall either specify a new time limit or summon a meeting.

(4) If the respondent in his reply has accepted the contention of the complaint without demanding that a summons for conciliation be made, judgement shall be passed accordingly.

§ 8-5 Summons

(1) The Conciliation Board shall summon the parties to a meeting to deal with the case pursuant to section 17-2. The meeting shall take place within three months of the complaint having been submitted.

(2) The parties shall in the summons be called upon to submit copies of any new documents to the Conciliation Board and the opposite party at least one week prior to the court meeting. The parties shall be specifically notified of the one-week time limit for warning the presentation of evidence pursuant to section 8-8(4), for announcing the use of an advocate pursuant to section 8-7(5) and for requesting discontinuation of the proceedings pursuant to section 8-11(2).

§ 8-6 The duty of the parties to attend

(1) A party having an ordinary venue in the county or in a neighbouring county and who does not have a valid excuse for not attending, has a duty to attend either in person or by a legal representative pursuant to section 2-3. A party in a case concerning a personally run business undertaking may attend by one of his employees as his legal representative. In a case where a summons for conciliation has been made notwithstanding that the respondent has accepted the claimant’s prayer for relief the parties are not obliged to attend in person.

(2) A party who is not obliged to attend in person pursuant to paragraph (1), shall be represented by counsel.

(3) The case shall be summarily dismissed if the claimant is absent without there being cause to believe that he has a valid excuse for failing to attend. Judgement by default shall be passed if the respondent is absent and the conditions for passing judgement by default are fulfilled. The case shall be adjourned to a new meeting if the conditions for summary dismissal or the passing of judgement by default are not fulfilled, unless the party attending demands that the proceedings be discontinued.

§ 8-7 Counsel and of counsel

Majority proposal:

(1) As counsel before the Conciliation Board the parties may use

  • (a)an advocate,

  • (b)a legal services provider pursuant to section 218, second paragraph, items 1 to 3, of the Courts of Justice Act,

  • (c)a licensed debt collector having a debt collection assignment for the case,

  • (d)a spouse or cohabitant, a relative in a direct line of ascent or descent or a sibling,

  • (e)an employee or other person affiliated with the business undertaking to which the case relates, or

  • (f)a suitable person of legal age by the consent of the Conciliation Board in each individual case.

(2) As counsel during a meeting the parties may also use

  • (a)a person of legal age who is employed by and under the professional supervision of counsel pursuant to paragraph (1)(a) – (c), or

  • (b)a person on the Conciliation Board’s panel of permanent representatives pursuant to paragraph (6).

(3) As counsel before the Conciliation Board shall not be used a person who

  • (a)carries out work or assignments for the Conciliation Board, or

  • (b)is involved in the commercial or regular provision of legal services falling outside the scope of paragraphs (1) or (2).

(4) As of counsel during a meeting of the Conciliation Board the party may be assisted by a person qualified to act as counsel pursuant to paragraphs (1) and (2).

(5) A party intending to be accompanied by an advocate as counsel, of counsel or legal representative, shall notify the opposite party and the Conciliation Board accordingly at least one week prior to the meeting. In such case the opposite party may be accompanied by an advocate without specific notification.

(6) Each Conciliation Board shall maintain a panel of permanent representatives. A joint panel for several Conciliation Boards may be established. The panel shall be appointed by the municipal administration for a period of four years on the basis of a proposal from the head of the Conciliation Board. More detailed provisions on the number of representatives, their qualifications and remuneration etc. shall be provided by regulations.

Minority proposal:

(1) As counsel before the Conciliation Board the parties may use

  • (a)an advocate,

  • (b)a legal services provider pursuant to section 218, second paragraph, items 1 to 3, of the Courts of Justice Act,

  • (c)a licensed debt collector having a debt collection assignment for the case,

  • (d)a spouse or cohabitant, a relative in a direct line of ascent or descent or a sibling,

  • (e)an employee or other person affiliated with the business undertaking to which the case relates, or

  • (f)a suitable person of legal age by the consent of the Conciliation Board in each individual case.

(2) As counsel or of counsel during a meeting the parties may use

  • (a)a person referred to under paragraph (1)(d) to (f), or

  • (b)a person on the Conciliation Board’s panel of permanent representatives pursuant to paragraph (3).

(3) Each Conciliation Board shall maintain a panel of permanent representatives. A joint panel for several Conciliation Boards may be established. The panel shall be appointed by the municipal administration for a period of four years on the basis of a proposal from the head of the Conciliation Board. More detailed provisions on the number of representatives, their qualifications and compensation etc. shall be provided by regulations.

§ 8-8 How the case shall be dealt with in a meeting

(1) The Conciliation Board shall by conciliation attempt to have the dispute resolved amicably in accordance with the purpose of Conciliation Board proceedings pursuant to section 8-1(2). Section 7-2 applies correspondingly. The Conciliation Board may propose solutions and express views on the dispute notwithstanding the restrictions in section 7-2(1), third sentence, provided that the Board shall not pass judgement in the case.

(2) The parties shall be allowed to present their views on the case and to respond to the views of the opposite party. The Conciliation Board shall determine whether counsel or of counsel of a party present in person may be permitted to speak in addition to the party.

(3) Documents shall be reviewed during the course of the parties’ presentation of the case. If a party presents new documentary evidence in the sitting, the opposite party shall be allowed to assess and respond to such material. If required, the case shall be adjourned pursuant to paragraph (7).

(4) Other presentation of evidence may take place by permission of the Conciliation Board, provided that it is deemed to be of material importance and further provided that it shall not unduly delay the case. The Conciliation Board shall not appoint experts nor order anybody to present themselves as witnesses or disclose evidence. A party wishing to present witnesses on a voluntary basis, or who wishes judicial inspection of a site or other form of inquiry, shall notify the opposite party and the Conciliation Board at least one week prior to the meeting.

(5) Parties and witnesses shall not make an affirmation, but shall be called upon to provide a true statement and be made aware of the liability attached to the making of false statements.

(6) An in-court settlement pursuant to the provisions of section 7-8 may be entered into if the parties reach agreement. If the Conciliation Board finds that there may be a basis for passing judgement in the case pursuant to section 8-10(2), the parties shall be asked whether they wish the Board to do so, and, if applicable, whether they have anything further to add.

(7) The Conciliation Board shall seek to bring the proceedings of the case to a conclusion at the first meeting. An adjournment shall be made only if there is reason to believe that further meetings will lead to the case being brought to a conclusion before the Conciliation Board.

§ 8-9 Public access to meetings and documentation. The court record

(1) The meetings of the Conciliation Board shall be public to the extent provided by Chapter 7 of the Courts of Justice Act. Conciliation proceedings may take place in camera, provided that both parties so request and the Conciliation Board is not passing judgement in the case.

(2) The parties and the general public shall be entitled to inspect the documents of the Conciliation Board relating to the case to the extent provided by Chapter 18.

(3) The court record of the meeting of the Conciliation Board shall include the entries required pursuant to section 17-8.

§ 8-10 The authority of the Conciliation Board to pass judgement

Majority proposal:

(1) The Conciliation Board may pass judgement with the consent of both parties.

(2) The Conciliation Board may pass judgement at the request of the claimant provided that

  • (a)the conditions for passing judgement by default are fulfilled, or

  • (b)the respondent in a case concerning a claim for the payment of money has not raised any objection to the claim other than inability to pay or other objections which are obviously irrelevant.

(3) The Conciliation Board may only pass judgement of its members are in agreement as to the adequacy of the basis for passing judgement and as to the conclusion of such judgement.

Minority proposal:

(1) The Conciliation Board may pass judgement with the consent of both parties.

(2) The Conciliation Board may pass judgement at the request of a party provided that

  • (a)the conditions for passing judgement by default are fulfilled,

  • (b)the respondent in a case concerning a claim for the payment of money has not raised any objection to the claim other than inability to pay or other objections which are obviously irrelevant, or

  • (c)the case is of a pecuniary nature and the amount in dispute is less than twice the base rate of the National Insurance system.

(3) The Conciliation Board may only pass judgement of its members are in agreement as to the adequacy of the basis for passing judgement.

§ 8-11 Discontinuation of the case

(1) The Conciliation Board may discontinue its processing of the case without summoning to a meeting if following the reply it finds that the case is obviously unsuited for being argued before the Conciliation Board.

(2) The Conciliation Board shall discontinue processing the case if the respondent so requests at least one week prior to the meeting

  • (a)in a case being brought before a tribunal pursuant to section 8-2(1)(d), or

  • (b)in a case being brought by the municipal administration of the district of the relevant Conciliation Board.

(3) The case shall be discontinued following a failed attempt at conciliation, unless the Conciliation Board shall pass judgement. Each of the parties may request that the processing of the case be discontinued if neither settlement has been reached nor the case has been closed for judgement within three hours.

(4) If the case has not been concluded within six months of the submission of the complaint each of the parties may bring the case before the Municipal Court by filing a writ of summons with the Court In such case the proceedings before the Conciliation Board shall be discontinued.

(5) A case which has been discontinued shall not again be brought before the Conciliation Board without the prior consent of the opposite party.

§ 8-12 The rulings of the Conciliation Board

(1) All rulings not being judgements pursuant to section 21-1(1)(a) shall be made in the form of a decision.

(2) Outside conciliation meetings the administrator of the Conciliation Board shall make such determinations as to the proceedings of the case as may be made by a preparing judge pursuant to section 21-2(2). The administrator of the Conciliation Board may also pass judgement pursuant to section 8-4(3) and (4), provided that the conclusion of such judgement is beyond doubt.

(3) If the case is disputed, grounds for the judgement shall be given. In its grounds the Conciliation Board shall briefly explain the subject matter of the case, state the prayers for relief of the parties and specify the factors to which the Conciliation Board has attached weight in reaching its conclusion. The prayers for relief of the parties need not be stated if included in the minutes of the meeting which is distributed with the judgement.

(4) Decisions concluding the case shall refer to the statutory provision upon which such ruling is based.

(5) Judgement shall be passed within one week of the case having been closed for judgement.

§ 8-13 Costs

Majority proposal:

(1) Compensation for costs before the Conciliation Board shall only apply to the following items:

  • (a)the court fee,

  • (b)the travel expenses of parties under an obligation to attend in person,

  • (c)an amount of up to one half of the court fee in respect of each day of the meeting to cover meeting expenses of parties not under an obligation to attend in person, and

  • (d)an amount of up to four times the court fee in respect of legal assistance concerning submission of the complaint or the reply or other preparation of the case, but not exceeding the court fee if the claimant in addition is requesting compensation for costs relating to non-judicial enforcement pursuant to paragraph (3).

(2) Claims for compensatory damages from the State pursuant to section 23-12 concerning errors relating to the proceedings in the Conciliation Board, shall be brought before the Municipal Court. The claim shall be directed at the municipal administration.

(3) Claims for compensation for costs relating to non-judicial enforcement (debt collection) shall not be regarded as costs for the purposes of this section.

Minority proposal:

(1) Compensation for costs before the Conciliation Board shall only apply to the following items:

  • (a)the court fee,

  • (b)the travel expenses of parties under an obligation to attend in person,

  • (c)an amount of up to one tenth of the base rate of the National Insurance system to cover assistance from a provider of legal services, and

  • (d)an amount of up to four times the court fee in respect of legal assistance concerning submission of the complaint or the reply or other preparation of the case, but not exceeding the court fee if the claimant in addition is requesting compensation for costs relating to non-judicial enforcement pursuant to paragraph (3).

(2) Claims for compensatory damages from the State pursuant to section 23-12 (3) concerning errors relating to the proceedings in the Conciliation Board, shall be brought before the Municipal Court. The claim shall be directed at the municipal administration.

(3) Claims for compensation for costs relating to non-judicial enforcement (debt collection) shall not be regarded as costs for the purposes of this section.

§ 8-14 Recourse against the rulings of the Conciliation Board

(1) Judgements of the Conciliation Board may be reviewed by legal action before the Municipal Court pursuant to the provisions of Chapters 9 and 10. A writ of summons must be filed within one month. Reinstatement may be granted of the time-limit is exceeded. Section 9-2 (4) on simplified claims shall apply.

(2) Appeal shall only be permitted in respect of rulings as to

  • (a)costs, court fees or stipulation of legal fees, and

  • (b)amendment of a judgement beyond what is provided by sections 21-8 and 21-9.

(3) The appeal shall be filed with the Municipal Court and shall be dealt with pursuant to the provisions concerning appeal to the Court of Appeal in respect of interlocutory orders. Paragraph (1), third sentence, on simplified formulation applies correspondingly to the notice of appeal. The Municipal Court shall make a new ruling on the merits of the case with regard to the issues being reviewed under the appeal.

(4) Reinstatement will not be granted to compensate for omissions before the Conciliation Board.

(5) Judgements of the Conciliation Board may be reopened by application to the Municipal Court pursuant to the provisions of Chapter 13.

Part III – The proceedings of the court of first instance Chapter 9. Ordinary procedure I General

§ 9-1 The scope of the Chapter. The Municipal Court and the Court of Appeal as the courts of first instance

(1) This Chapter applies to the proceedings of the Municipal Court and to the proceedings of the Court of Appeal whenever the Court of Appeal shall be the court of first instance.

(2) The Municipal Court shall be the ordinary court of first instance in cases being brought before the courts, subsequent, if applicable, to the case having been dealt with by the Conciliation Board.

(3) The Court of Appeal shall deal with cases as the court of first instance whenever specifically provided.

II The preparation of the case

§ 9-2 Instituting proceedings. The writ of summons

(1) Proceedings shall be instituted by submission of a writ of summons to the court. The writ of summons shall be submitted orally or in writing pursuant to section 16-1(2).

(2) The writ of summons shall specify:

  • (a)the court before which the case is being brought,

  • (b)the names and addresses of the parties, their legal representatives and counsel,

  • (c)the claim being brought and a prayer of relief specifying the outcome the claimant is requesting by way of judgement,

  • (d)the factual and legal grounds upon which the claim is based,

  • (e)the evidence which will be presented,

  • (f)the basis upon which the court may deal with the case, if there can be any doubt as to this, and

  • (g)the claimant’s view on the further proceedings of the case, including any agreements which may be of relevance to the proceedings.

(3) The writ of summons shall provide a basis for the parties and the court to deal with the case in a sound manner. The claims, the prayers and the factual and legal grounds shall be specified in such a manner to enable the respondent to consider the claims and prepare the case. The argumentation of the claimant shall not be pursued further than required to attend to these needs. The writ of summons shall provide the court with a basis for assessing its jurisdiction, and shall provide the information required for it to be served and for the parties to be contacted.

(4) If proceedings are instituted for the review of a decision of a tribunal, which decision would have the same effects as a judgement unless brought before the courts, or for the review of a judgement of the Conciliation Board, it shall be sufficient to submit such decision to the court and state that a review of the decision is being requested, what amendment is being requested and what is alleged to be the error attaching to the decision. The court shall obtain the documents from the body having made the decision. Section 33-2(1) shall apply to the institution of proceedings for review by the court pursuant to Chapter 33 of the decision of a tribunal.

§ 9-3 Written reply

(1) The respondent shall submit a written reply or an oral reply which the court enters into writing, cf. section 16-1(2), unless the court determines that the reply shall be made at a court sitting pursuant to section 9-5. The court shall set a time limit, which should normally be 3 weeks, for the respondent to either submit the reply or have it entered into writing. The court shall provide the necessary guidance as to the required contents of the reply and the consequences of a response being inadequate or not submitted within the time limit.

(2) The respondent shall in the reply state whether the claim made is accepted or contested, and whether he has any objections to the court dealing with the case.

(3) The reply should specify:

  • (a)the respondent is prayer for relief, specifying the outcome the respondent is requesting by way of judgement,

  • (b)the factual and legal grounds upon which the contention is based,

  • (c)the evidence which will be presented, and

  • (d)the views of the respondent on the further proceedings of the case.

(4) The argumentation of the respondent shall not be pursued further than required to attend to the further preparation of the case.

§ 9-4 Administration of the case. Planning the further proceedings

(1) The court shall actively and systematically manage the preparation of the case to ensure that it is dealt with in a swift, cost effective and sound manner.

(2) Once the reply has been submitted pursuant to section 9-3, the court shall discuss a plan for the further proceedings with the parties, including setting time limits and making necessary decisions. These include:

  • (a)whether judicial mediation or mediation at a court sitting should be pursued,

  • (b)whether the case should be dealt with pursuant to special provisions,

  • (c)whether court sittings shall be held during the preparation of the case and whether the case may (d) be ruled on following such court sitting,

  • (e)whether written submissions shall be made as part of the basis for ruling on the case,

  • (f)whether the proceedings of the case should be split,

    review of the presentation of evidence, including whether access to evidence, production of evidence or judicial inspection of a site is being requested, whether evidence shall be secured and whether an expert should be appointed,

  • (g)whether final written submissions shall be made,

  • (h)setting the date of the main hearing, which date shall fall within 6 months of the submission of the writ of summons, unless special circumstances otherwise require,

  • (i)whether expert or regular lay judges shall be appointed, and

  • (j)other issues of importance to the preparation of the case.

(3) Discussions pursuant to paragraph (2) shall take place at a court sitting, which may be held in the form of a long-distance meeting. The court may request the parties to submit their remarks in writing or obtain the required clarification by other methods, if necessary to progress the case or if it is evident that discussions at a court sitting are not required.

§ 9-5 Court sittings during the course of the preparation of the case

(1) Unless it has been decided that the reply shall be made in writing, the reply shall be made at a court sitting during the course of the preparation of the case, to which sitting the parties shall be summoned pursuant to section 17-2.

(2) During the court sitting the respondent shall be called upon to state his position as to the claims and as to the jurisdiction of the court as provided by section 9-3(2). A plan for the further proceedings of the case shall be discussed and determined pursuant to the provisions of section 9-4.

(3) Other court sittings than those provided for in paragraphs (1) and section 9-4(3) may be held to the extent required for or appropriate to the further preparation of the case. Such court sittings may be held in the form of long-distance meetings. If at the main hearing court shall sit with lay judges or with more than one professional judge, it may be decided that this will also apply to court sittings in the course of the preparation of the case.

(4) The court may pass judgement following proceedings at a court sitting during the course of the preparation of the case, provided that it has a sound basis for doing so and that the parties have given their consent.

§ 9-6 Statements, objections and determinations relating to the proceedings of the case

(1) The parties shall be entitled to make statements concerning issues of importance to determinations relating to the proceedings of the case.

(2) A party shall raise any objections concerning procedural steps as soon as he is able to do so. An objection that is raised at a later time shall be disallowed unless such party was unaware of there being a basis for raising the objection and it would be unreasonable for him to be unable to invoke it.

(3) Determinations relating to the proceedings of the case, including whether the case shall be summarily dismissed or quashed, shall be made as early as possible during the preparation of the case. The procedural issue may be dealt with and determined as part of the main hearing, if required by its connection to the claims to be determined in the case or by other circumstances.

(4) Determinations as to procedural issues during the course of the preparation of the case shall be made on the basis of written proceedings. Oral proceedings shall take place if required to fulfil the purposes of the Act as to fair and sound proceedings. The oral proceedings may be limited to special issues.

§ 9-7 Ruling based on agreement between the parties

(1) If the parties agree on a claim, and provided that such agreement is binding on the court pursuant to section 5-2, such claim shall be determined immediately on such basis. Ruling on the claim may be postponed until the remaining rulings of the case are to be made, provided that concern for one of the parties shall not suggest otherwise and provided that such postponement shall otherwise be expedient.

(2) parties do not agree on costs relating to dealing with such claim. A ruling pursuant to paragraph (1) may be made notwithstanding that the parties do not agree on costs relating to dealing with such claim.

§ 9-8 Simplified judgement proceedings

(1) The court may upon application determine the claim by judgement following simplified judgement proceedings, provided that it shall be evident that a claim which has been brought cannot be upheld either in full or in part or provided that it shall be evident that the objections to the claim are insufficient as a whole. The court shall only process an application for simplified judgement proceedings if it finds cause to do so. An appeal cannot be brought against the decisions of the court as to such proceedings.

(2) Simplified judgement proceedings may take place at any time during the course of the preparation of the case. Section 9-6(4) applies correspondingly.

(3) An appeal may be brought against the judgement pursuant to the provisions concerning regular judgements. The appeal may be ruled on pursuant to section 11-12(2).

§ 9-9 Type of proceedings and the basis for ruling on the subject matter

(1) The subject matter under dispute in the case shall be ruled on following oral proceedings at a main hearing pursuant to section 9-14, a court sitting pursuant to section 9-5(4) or written proceedings pursuant to paragraph (2). Written submissions pursuant to paragraphs (3) and (4) shall be included in the grounds for the ruling in cases which shall be ruled on following a main hearing.

(2) The parties may with the consent of the court agree that the ruling shall be made on the basis of written proceedings or a combination of written proceedings and a court sitting. Consent shall only be given if it would result in the case being prosessed more effective, including more cost-effectively.

(3) If the case involves particularly complex legal or factual issues, the court may determine that the parties shall make written submissions concerning such specific issues. Such written submissions shall only be requested if required to establish a considerably firmer basis for making a ruling and concerns as to cost-effectiveness do not suggest otherwise. More detailed determinations as to the format and scope of the submissions may be made. If a party objects to making a written submission pursuant to this paragraph the issue shall be determined by interlocutory order.

(4) In cases where the actual facts are complex the court may request the claimant to submit a brief chronological or other systematic account of the actual facts or part thereof. The respondent shall submit a reply stating which parts of the factual description are accepted and which parts are contested. With regard to the latter, the respondent shall briefly state which in his opinion are the actual facts. The court may call upon the parties to cooperate on accounts pursuant to this provision.

§ 9-10 Completion of the preparation of the case. Final written submission

(1) Preparation of the case shall be completed at least two weeks prior to the main hearing, unless the court fixes a different time limit. No new claims, expansion of the prayer for relief, new grounds upon which to base the prayer or new evidence shall be submitted subsequent to the completion of the preparation of the case, unless occasioned by amendments included in the final written submission of the opposite party or the conditions for amendments pursuant to section 9-16 are fulfilled.

(2) The court shall as a general rule require the parties to submit a final written submission prior to the preparation of the case being completed. The final written submission shall briefly state the prayer for relief, the grounds upon which the prayer is based, the legal rules being invoked and the evidence to be presented by the party. The final written submission shall be accompanied by a proposed progress schedule for the main hearing, cf. section 9-11(2).

§ 9-11 Preparation for the main hearing

(1) The court shall summon the parties to the main hearing, cf. section 17-2.

(2) The court shall as a general rule discuss the practicalities relating to the main hearing with the parties prior to such hearing taking place. The court shall for example clarify the method by which the dispute is presented, the timing and method of giving testimony, issues relating to the judicial inspection of a site and the duration of various submissions to be made during the course of the proceedings. The court may stipulate time frames for the submissions of the parties, the giving of testimony by the parties and other presentation of evidence, provided that the use of time frames is reasonable and appropriate.

III The main hearing

§ 9-12 The courts composition under the main hearing

(1) The court shall at the main hearing sit with two lay judges, in addition to the professional judge or the professional judges, if requested by one of the parties or deemed by the court to be desirable.

(2) The lay judges shall be expert lay judges if required in order to ensure that the case be dealt with in a proper manner.

(3) The expert lay judges shall be appointed from the panels of expert lay judges or from outside such panels, in order that they shall have the expertise suited to the case. Lay judges having differing expertise may be appointed.

(4) The administrator of the Municipal Court may decide that the court shall sit with more than one professional judge at the main hearing, if

  • (a)the case involves particularly complex legal or factual issues, or other circumstances so require, or

  • (b)the parties have agreed to such procedure and in accordance with such agreement have waived the right to appeal, and the value of the subject matter under dispute in the case is in excess of the minimum requirement for appeal to the Court of Appeal pursuant to section 11-13.

(5) Three professional judges shall participate if the Municipal Court is to sit with more than one professional judge. The Municipal court shall sit with two professional judges and three lay judges if the court is to sit with lay judges in addition to more than one professional judge. Deputy judges shall not participate in ruling on a case in which the court shall sit with more than one professional judge. The court shall summon a judge pursuant to the provisions of section 19, second paragraph, of the Courts of Justice Act if there are fewer permanent professional judges attached to the court than the number of judges who shall participate in the proceedings of the case. The administrator of the court shall determine who shall be the presiding judge.

§ 9-13 The administration of the main hearing

(1) At the start of the main hearing the court shall verify that circumstances are conducive to the proceedings taking place as determined during the preparation of the case and in the manner required for appropriate progression of the court proceedings.

(2) The court shall ensure that the main hearing takes place in a focused and proper manner, without unnecessary delays to the court, the parties, the witnesses and the experts. Proceedings concerning issues of no relevance to the case shall be refused. Unnecessary repetition, unnecessarily comprehensive proceedings and proceedings on issues which have been sufficiently discussed previously shall also be refused. Provided that time frames for submissions or presentations of evidence have been agreed or imposed, the court shall ensure that these are observed and may make such preclusions as are required.

§ 9-14 Oral main hearing

(1) The proceedings at the main hearing shall be oral and the presentation of evidence shall be immediate pursuant to section 24-9.

(2) The requirement as to orality shall not prevent a party, a witness, an expert or counsel from presenting and referring to supporting documents to assist his explanation. Such supporting documents shall not constitute evidence in the case independent of the explanation they are intended to assist. Neither shall they assume the character of written pleadings. The supporting document shall be submitted in time for the opposite party to be able to review it prior to it being used at the main hearing, if the complexity or proportions of the document are such that prior review is required. Use of the document may be refused if it is not submitted in time, provided that its use would lead to a delay in progressing the case. Section 9-16(2) shall apply correspondingly.

§ 9-15 The various steps of the main hearing

(1) The prayer for relief, the grounds upon which the prayer is based and the previously announced presentation of evidence shall be clarified by the court.

(2) The claimant shall make a focused presentation of the case, including a presentation of documentary evidence and other evidence which cannot be provided by statements or judicial inspection of sites.

(3) The respondent shall be permitted to supplement the presentation of the claimant pursuant to paragraph (2) in a focused manner.

(4) The parties shall give testimony. The claimant shall testify first, unless special reasons suggest otherwise.

(5) The witnesses shall be examined.

(6) Other presentation of evidence shall take place, including examination of experts.

(7) The parties shall each be permitted to address the court twice by way of closing arguments. The claimant shall be permitted to address the court first, unless the court for special reasons determines otherwise.

(8) The court may determine a different order for the various steps of the main hearing. Presentation of evidence subsequent to the closing arguments of the parties pursuant to paragraph (7) shall only be permitted with the consent of the parties or provided that they are permitted to argue their views on such presentation of evidence at the main hearing subsequent to it having taken place.

(9) If at the main hearing, it is not possible to present evidence which the parties are entitled to present, the court may, if it ensures that the case is dealt with in a proper manner, proceed with the main hearing in such a way that only the presentation of such evidence and the arguments related thereto shall remain. Completion of the proceedings shall take place at a court sitting unless the parties consent to making written submissions.

(10) If significant parts of the basis for the ruling on the case are in the form of written documentation, the court may determine that the parties, instead of making presentations pursuant to paragraphs (2) and (3), shall present their main address, including a review of the case and the factual and legal arguments, immediately after the contention, the grounds which form the basis for the prayer etc. have been clarified pursuant to paragraph (1). Towards the end of the proceedings the parties shall in such case be permitted to address the court by way of one brief closing argument each, which shall be limited to what emerged during the main address of the opposite party and the subsequent presentation of evidence.

§ 9-16 Amendments to the claim, the prayer for relief the grounds for the prayer and evidence

(1) A party shall not, under objection from the opposite party, submit new claims, broaden the prayer for relief in respect of a submitted claim, submit new grounds upon which to base such prayer or present new evidence, unless permitted by the court. Such permission shall be granted provided that:

  • (a)the part is not to blame for the amendment not having taken place previously, and it would be unreasonable to refuse the amendment,

  • (b)the opposite party has a sufficient basis for, without adjournment, attending to his interests subsequent to the amendment, or

  • (c)refusal could lead to the party suffering an unreasonable loss.

(2) Even if the conditions under paragraph (1) are not fulfilled, the court may permit amendment on the condition that the party shall be ordered to compensate the opposite party for its additional expenses resulting from the amendment having taken place after the expiry of the time limit for amendments, unless other material considerations concerning the opposite party suggest otherwise.

(3) The court may, even if no objection has been made to an amendment pursuant to paragraph (1), refuse the amendment, provided that concern for the progression of the case or other important considerations suggest that amendment should not be permitted and that refusal would not be unreasonable.

§ 9-17 Adjournment

(1) If during the course of the main hearing it is necessary to adjourn the case, the court shall make provisions for the further proceedings of the case in order to minimise the delay.

(2) At the court sitting following adjournment the proceedings at the main hearing shall be repeated to the extent required to ensure a proper basis for the ruling.

§ 9-18 The case is closed for judgement. Continued proceedings

(1) When the case at, or subsequent to, the main hearing is ready to be ruled on, the court shall declare that the case is closed for judgement.

(2) If subsequent to the case having been closed for judgement it is deemed necessary to conduct further proceedings to ensure a proper basis for ruling on the case, the court shall see to it that such proceedings are conducted.

Chapter 10. Small claims procedure

§ 10-1 Main rule and scope

(1) Small claims procedure shall be the regular method of processing small claims in cases before the Municipal Court, with particular weight being attached to the proceedings being adapted to the importance of the dispute.

(2) The following cases shall be dealt with by small claims procedure:

  • (a)all cases where the amount in dispute does not exceed twice the base rate of the National Insurance system,

  • (b)cases where the amount in dispute is more than twice the base rate of the National Insurance system, provided that the parties consent to the case being dealt with by small claims procedure and the court so decides, and

  • (c)cases which are not of a pecuniary nature, and where the court finds that the small claims procedure offers a proper and appropriate method of dealing with the case, and both parties do not oppose such procedure.

(3) The following cases shall nevertheless not be dealt with by small claims procedure:

  • (a)class action pursuant to Chapter 32 of this Act,

  • (b)cases subject to special procedure, unless otherwise determined pursuant to the relevant Act,

  • (c)actions relating to legal controversies in respect of which the right of disposition of the parties is limited, cf. section 5-3, nor

  • (d)cases pursuant to paragraph (2)(a) where the case for one of the parties must be deemed to be of material importance beyond the specific dispute or provided that considerations as to proper processing of the case shall require that it be dealt with by ordinary procedure.

(4) Disputes as to whether a case shall be dealt with by small claims procedure shall be determined by interlocutory order. If pursuant to paragraph (3)(d) it is determined without the consent of the claimant that the case shall not be dealt with by small claims procedure the claimant may waive the case without relinquishing the claim and without liability as to the costs of the opposite party.

§ 10-2 Preparation of the case

(1) Chapter 9 II shall apply correspondingly, subject to such amendments as provided for in paragraphs (2) and (3).

(2) The reply shall in any event always be submitted pursuant to the provisions concerning written reply in section 9-3.

(3) The court shall through contact with the parties and by the provision of necessary guidance pursuant to section 5-4 attach particular weight to swiftly clarifying whether further steps should be taken during the preparation of the case and whether there may be scope for an amicable settlement. The parties shall not submit written accounts concerning the case unless the parties and the court find that written proceedings only will be the most cost-effective method. The parties shall give warning of evidence and submit documentary evidence which has not previously been notified or submitted at least one week prior to the court sitting pursuant to section 10-3. Section 9-10 shall not apply.

§ 10-3 Court sitting for ruling on the case

(1) The court shall summon to a court sitting for the final proceedings and ruling on the case, unless the parties have agreed on processing the case in writing. The court sitting may be held in the form of a long-distance meeting. The court shall in the summons provide the necessary information regarding the practicalities of the sitting.

(2) Sections 9-13 to 9-15 and 9-17 and 9-18 shall apply correspondingly, but the court may simplify the proceedings to achieve the required focus. Evidence shall be reviewed and presented only to the extent required to meet the needs for sound and cost-effective proceedings. Long-distance examination may take place unless the court finds it necessary to receive the statement directly at the court sitting. The court sitting may last for more than one day only if particularly strong reasons so suggest.

§ 10-4 Judgement

(1) Unless the case is otherwise concluded it shall be concluded by judgement within 4 months of the writ of summons being submitted.

(2) In cases dealt with by oral proceedings, judgement shall be passed at the end of the court sitting if the judge finds reason for doing so. Otherwise judgement shall be passed within one week of the parties having been informed that the case is closed for judgement.

(3) Judgement may be passed at the end of the court sitting even though only the conclusion of the judgment has been put in writing. In such case the judge shall explain orally the main points of the grounds. Judgement shall be put in writing within one week and conveyed to the parties.

(4) Instead of that which is provided in section 21-6(4) and (5), the judgement shall briefly state the subject matter of the case, set out the prayers of the parties and the grounds upon which such prayers are based, and explain the factors to which the court has attached particular weight.

§ 10-5 Costs

(1) Compensation for costs shall only be given for the following items:

  • (a)travel expenses of the parties in respect of the court sitting,

  • (b)court fees,

  • (c)presentation of evidence which is not deemed to be unnecessary or disproportionate, and

  • (d)legal assistance up to 25% of the amount in dispute in the case limited to 25% of twice the base rate of the National Insurance system, although up to one twentieth of the base rate of the National Insurance system may always be claimed. In cases of a non-pecuniary nature, up to 25% of twice the base rate of the National Insurance system may be claimed.

(2) The court may order a party who has clearly either brought or resisted an action for no good reason to be liable for costs without the limitations pursuant to paragraph (1). The same shall apply to costs that the party has inflicted upon the opposite party by negligent conduct.

(3) Paragraph (1) shall not apply to costs relating to appeal.

§ 10-6 Appeal

An appeal may be brought against the judgement pursuant to the provisions relating to judgements under ordinary procedure. The appeal may be determined pursuant to section 11-12(2).

Part IV - Recourse Chapter 11. Appeal to the Court of Appeal

§ 11-1 The Court of Appeal as appellate court

The Court of Appeal is the appellate court for rulings of the Municipal Courts and of courts sitting with only one judge or only one professional judge.

§ 11-2 Rulings against which an appeal may be brought etc.

(1) An appeal may be brought against judgements, interlocutory orders and decisions.

(2) Rulings on procedural issues cannot be appealed after the merits of the case have been decided.

(3) In cases dealt with by oral proceedings, the limitation in paragraph (2) arises when the court sitting for conclusion of the consideration of such claim commences The limitation shall cease if the proceedings are adjourned.

(4) Such limitations on the right of appeal shall not apply to a ruling to summarily dismiss or quash the case or to rulings directed at third parties.

(5) Paragraph (2) to (4) apply correspondingly to rulings concerning parts of the case.

§ 11-3 Grounds of appeal

(1) An appeal may be brought against a judgement or an interlocutory order on the grounds of errors as to the assessment of the actual facts, as to the application of law or as to the procedure upon which the ruling is based.

(2) An interlocutory order concerning the procedure of the case which pursuant to statute shall be based on discretion with a view to appropriate and sound proceedings, may as far as the discretionary assessment is concerned only be appealed on the grounds that the ruling is unsound or clearly unreasonable.

(3) A decision may only be appealed on the grounds that the court has based such decision on an incorrect statutory interpretation as to which types of rulings the court may make pursuant to the provision having been applied, or on the grounds that the ruling is patently unsound or unreasonable.

§ 11-4 The claims which may be dealt with on appeal

(1) An appeal may relate to claims which have been determined by the ruling which is being appealed.

(2) Provided that such claims may be dealt with pursuant to substantially the same provisions an appeal may in addition to claims pursuant to paragraph (1) include, the following:

  • (a)claims which are related to claims pursuant to paragraph (1), and which cannot be brought in a separate action,

  • (b)claims which are connected to claims pursuant to paragraph (1), where the amendment is related to circumstances that have occurred too late, or hat have become known too late, for the claim to be included in the action at an earlier stage,

  • (c)claims which are connected to claims pursuant to paragraph (1), and where the opposite party does not oppose the widening of the action and the court does not find that material concerns suggest otherwise,

  • (d)claims which are connected to claims pursuant to paragraph (1), and where the court finds that the new claim may be processed in a sound manner on appeal and important considerations suggest that it should be allowed to be processed, and

  • (e)new claims being brought by way of an objection based on set-off, where the objection could not have been raised at an earlier stage or where the opposite party consents.

(3) The prayer for relief in respect of a determined claim may only be widened if the amendment is based on circumstances that have occurred too late, or have become known to the party too late, for it to have been asserted before the lower court, or if the opposite party consents.

(4) A party may bring claims pursuant to paragraph (2) or widen the prayer for relief pursuant to paragraph (3) subsequent to the expiry of the time limit for appeal or reply, provided that it would be reasonable to permit the amendment. Claims pursuant to paragraph (2)(a) and amendments to the prayer for relief which it would not have been possible to raise or assert at an earlier stage shall always be dealt with if requested.

§ 11-5 The time limit for appeal

(1) The time limit for appeal shall be one month unless otherwise provided by statute.

(2) The court may set a one week time limit for appeal concerning

  • (a)rulings ordering or refusing access to evidence or issues of evidence,

  • (b)rulings ordering the making of an affirmation, and

  • (c)rulings concerning the appointment or otherwise of experts.

(3) If the person entitled to appeal the ruling is present in court, the court may require that any appeal concerning rulings pursuant to paragraphs (2)(a) and (b) as to access to evidence or the making of an affirmation, which pursuant to section 21-11(2) cannot be enforced until legally enforceable, shall be lodged immediately.

§ 11-6 Waiver of the right of appeal

(1) The right of appeal may be waived. The right of appeal may only be waived prior to the ruling if the waiver is mutual. Notwithstanding that the right of appeal has been waived prior to the ruling an appeal may be brought against a ruling on the grounds of error pursuant to section 11-21(2).

(2) The right of appeal shall be waived expressly.

§ 11-7 Derivative appeal

(1) A party that does not have a direct right of appeal due to the time limit for appeal having expired, the right of appeal having been waived or the requirement as to the value of the subject matter of appeal not having been fulfilled, shall still have a right of appeal if the appeal by the opposite party is not limited to an appeal against procedure.

(2) Appeal pursuant to paragraph (1) shall not be required if the party is only going to claim that the cost award be amended.

(3) Appeal pursuant to paragraph (1) must be lodged within the time limit determined pursuant to section 11-10(2).

(4) Appeal pursuant to (1) shall lapse if the appeal by the opposite party is not dealt with on its merits.

§ 11-8 The parties to the appeal

(1) The parties to the legal action may bring an appeal against judicial rulings in order to have these amended in their favour. Whoever will be affected by such amendment shall be made a respondent.

(2) Rulings relating to the procedural rights or obligations of a person who is not a party to the legal action, may be appealed by such person. Where an appeal is brought by other persons, they shall be made a respondent

§ 11-9 Bringing the appeal. The notice of appeal

(1) An appeal shall be brought by submission of a notice of appeal.

(2) The appeal shall be brought orally or in writing pursuant to the provisions of section16-1(2) before the court which made the ruling against which the appeal is being brought.

(3) The notice of appeal shall specify:

  • (a)which appellate court the case is being brought before,

  • (b)the names and addresses of the parties, the legal representatives and counsel,

  • (c)the ruling against which the appeal is being brought,

  • (d)whether the appeal applies to the ruling in its entirety or only to specific parts thereof,

  • (e)the claim to which the appeal relates, and a prayer for relief specifying the outcome demanded by the appellant,

  • (f)the errors in the ruling against which the appeal is being brought,

  • (g)the factual and legal grounds upon which it is asserted that the underlying ruling contains errors,

  • (h)the evidence that will be presented,

  • (i)the basis upon which the court may deal with the case, if there can be any doubt as to this, and

  • (j)the views of the appellant on the further proceedings of the case.

(4) The notice of appeal shall provide a basis for the parties and the court to deal with the case in a sound manner. Specific mention shall be made of what is being contested in the appealed ruling, and of any new factual or legal grounds or new evidence. In all other respects section 9-2(3) shall apply to the extent appropriate.

§ 11-10 Preliminary processing of the appeal by the court receiving the appeal

(1) If the court finds that the appeal is inadequate or that the time limit for appeal may have expired, the appellant shall be given the opportunity to remedy the error according to section 22-1 and 22-2. A ruling as to whether the appeal shall be summarily dismissed or reinstatement shall be given, shall be made by the Court of Appeal.

(2) The court shall serve the notice of appeal on the respondent, and shall determine a time limit for submitting the reply. The time limit shall normally be three weeks for appeals against judgements and one week for appeals against decisions and interlocutory orders.

(3) The case shall be sent to the Court of Appeal immediately upon the reply having been submitted and it having been communicated to the appellant. The same shall apply if the time limit for submitting the reply has expired without it having been submitted.

§ 11-11 The reply

(1) The respondent should submit a reply.

(2) The respondent should in the reply express his views on the appeal. The respondent should make a prayer for relief and specify the factual and legal basis for such contention and the evidence he will present. The respondent should express his views on the further processing of the appeal.

(3) If the reply constitutes a derivative appeal, sections 11-9 and 11-10 shall apply to the derivative appeal and the preliminary processing of the same.

§ 11-12 Summary dismissal and setting aside during the course of the preparation of the case

(1) The Court of Appeal may during the course of the preparation of the case

  • (a)summarily dismiss an appeal that suffers from an error which must lead to summary dismissal,

  • (b)quash an action or part thereof on the grounds that the courts lack jurisdiction or that the action has been determined by an unappealable final judgement, and

  • (c)set aside a ruling against which an appeal has been brought where the ruling suffers from an error which shall be given effect unconditionally, cf. section 11-21(2).

(2) In case of an appeal against a judgement passed on the basis of simplified judgement proceedings or small claims procedure, the Court of Appeal may, instead of referring the appeal, set aside the judgement it suffers from errors as to the application of law or from material procedural errors, and further processing of the case ought to take place in the Municipal Court.

(3) Section 9-6 shall apply correspondingly to the proceedings.

§ 11-13 Requirements as to consent. Refusal and disallowance

Majority proposal:

(1) An appeal against a judgement shall not be referred for proceedings without the consent of the Court of Appeal if the value of the subject matter of the appeal is less than twice the base rate of the National Insurance system. The character of the case, the needs of the parties for a review and whether the ruling against which the appeal has been brought or the processing of the case appears to suffer from weaknesses, are amongst the factors that shall be taken into consideration in assessing whether to give such consent.

(2) An appeal against a judgement may be disallowed if the Court of Appeal finds that the appeal will not succeed. Disallowance may be limited to certain claims or grounds of appeal.

(3) If the ruling pursuant to paragraph (1) has not been made prior to the main appeal hearing consent may still be withheld at such stage if it then becomes evident that the value of the subject matter of the appeal is less than twice the base rate of the National Insurance system.

(4) Disallowance pursuant to paragraph (2) shall not take place without the party having been notified that disallowance is being considered. Such notification may only be issued prior to the further preparation of the case having been raised with the parties pursuant to section 11-14(3), and no later than one month after the Court of Appeal received the appeal.

(5) Rulings pursuant to paragraphs (1) and (2) shall be made in the form of a decision, without oral proceedings. Refusal requires unanimity. An appeal may be brought against such decision only on the grounds of procedural error. Appeal cannot be brought against failure to disallow pursuant to paragraph (2), nor may such failure constitute grounds of appeal.

Minority proposal:

§ 11-13 Requirements as to consent. Refusal

(1) An appeal against a judgement shall not be referred for proceedings without the consent of the Court of Appeal if the value of the subject matter of the appeal is less than twice the base rate of the National Insurance system. The character of the case, the needs of the parties for a review and whether the ruling against which the appeal has been brought or the processing of the case appears to suffer from weaknesses, are amongst the factors that shall be taken into consideration in assessing whether to give such consent.

(2) Notwithstanding that the Court of Appeal has referred the appeal without making a ruling pursuant to paragraph (1) prior to the main hearing, consent may be withheld during the appeal hearing if at such stage it becomes evident that the value of the subject matter of the appeal is less than twice the base rate of the National Insurance system.

(3) Rulings pursuant to paragraph (1) shall be made in the form of a decision, without oral proceedings. Refusal requires unanimity. An appeal may be brought against such decision only on the grounds of procedural error.

§ 11-14 Further preparation of the case

(1) Unless the appeal is dealt with pursuant to sections 11-12 or 11-13, the court shall assess whether further preparation of the case shall take place. The preparation of the case shall focus on the issues to be reviewed on appeal and on those aspects of such issues which are in dispute. Sections 9-6 and 9-7 shall apply correspondingly.

(2) Appeals against interlocutory orders and decisions shall normally be determined on the basis prevailing when the case is sent to the Court of Appeal, unless further preparation of the case is required to establish a sound basis for the ruling. If there is a need to discuss further preparation of the case, Section 9-4 shall apply to the extent appropriate.

(3) Sections 9-4, 9-5(3) and (4), 9-10 and 9-11 shall apply correspondingly to appeals against judgements, provided however that the time limit pursuant to section 9-10 shall normally be one month prior to the main hearing.

§ 11-15 Type of proceedings and basis for the ruling in case of appeals against interlocutory orders and decisions etc.

(1) Appeals against interlocutory orders and decisions shall normally be determined following written proceedings.

(2) Oral proceedings shall be held if considerations as to sound and fair legal proceedings so suggest. The oral proceedings may be limited to specific issues. Section 11-18 shall apply correspondingly to the oral proceedings to the extent appropriate.

§ 11-16 Type of proceedings and basis for the ruling in case of appeals against judgements

(1) Appeals against judgements shall be determined following an oral appeal sitting pursuant to section 11-18 or a court sitting pursuant to section 11-14(3), cf. section 9-5(4). Written submissions pursuant to paragraphs (2) and (3) as well as factual descriptions pursuant to paragraph (4) shall form part of the basis for ruling on the case. Pursuant to paragraph (5) it may be ruled that the case shall be determined on the basis of written proceedings.

(2) The ruling on appeal may be based on the factual description in the judgement against which the appeal has been brought without such factual description being reviewed, in so far as the description is not be contested.

(3) The court may decide that the parties shall submit written descriptions of parts of the factual or legal issues involved in the case, in so far as this may lead to more effective, including cost-effective, proceedings, or if required to established a considerably firmer basis for the ruling. If a party objects to submitting a written description pursuant to this paragraph, the issue shall be determined by way of interlocutory order.

(4) Section 9-9(2) and (4) shall apply correspondingly.

(5) If the appeal relates only to procedure and the application of law, or if it only to a limited extent raises factual issues in respect of which first-hand presentation of evidence will be of material importance, the court may determine that the appeal shall be ruled on following written proceedings in so far as this will provide a sound basis for the ruling. Following such decision the parties shall make written submissions which, together with what emerges at any court sitting pursuant to the fourth sentence of this paragraph, shall form the basis for ruling on the case. Each party shall make at least one submission, but shall be entitled to make two. The court may decide that subsequent to the written submissions a court sitting shall be held for oral proceedings in respect of one or more specific issues involved in the case.

§ 11-17 Lay judges

In oral proceedings to deal with an appeal against a judgement, the court may in addition to the professional judges sit with two lay judges. Section 9-12(2) and (3) shall apply correspondingly.

§ 11-18 The oral appeal hearing

(1) The oral hearing to deal with an appeal shall take place pursuant to the provisions of sections 9-13, 9-14 and 9-16 to 9-18. The court shall ensure that the proceedings are focused on the issues raised in the appeal, and which are in dispute.

(2) Section 9-15 shall apply correspondingly to the proceedings at the main hearing. The appellant shall normally be permitted to address the court prior to the respondent doing so. Where both parties have brought an appeal, the court shall determine which party shall address the court first. The court may determine that the parties shall make their main address pursuant to section 9-15(10) if this will result in the appeal sitting being dealt with in an effective manner.

(3) After a party has described his prayer for relief and grounds therefor, the court may preclude further proceedings to the extent that it finds it evident that they will not succeed.

§ 11-19 Waiver of an appeal once brought

(1) The party having brought an appeal may waive such appeal at any time prior to the start of the appeal sitting and, subject to the consent of the opposite party, at any time prior to the claim having been determined. Appeals which are dealt with in writing only may be waived at any time prior to the appeal having been determined.

(2) Waiver of an appeal precludes any subsequent appeal.

§ 11-20 The court’s review of the appeal

(1) The court may only review the claims in respect of which the appeal has been brought. The court shall nevertheless give effect to errors pursuant to section 11-21(2) for claims between the appellant and the respondent which are not under appeal, when such error afflicts such claims and it is likely that such error has had an impact on the determination of such claims.

(2) In appeals against procedure, the court is limited in its review by the procedural errors that are invoked, and it shall not review the merits of the underlying case. The court may give effect to errors pursuant to section 11-21(2) beyond the scope of the appeal itself.

(3) In appeals concerning the merits of the case the court is limited in its review by the grounds of appeal, and such that sections 5-2 and 5-3 shall provide the framework for the review. The court shall not review the procedure of the case, provided however that it may give effect to errors pursuant to section 11-21(2) beyond the scope of the appeal itself.

§ 11-21 Procedural errors

(1) Effect shall be given to a procedural error if it is likely that such error has had an impact on the ruling against which the appeal has been brought.

(2) Effect shall always be attached to the following errors:

  • (a)that mandatory conditions for referring the case or determining the claim have been disregarded,

  • (b)that the composition of the court was unlawful,

  • (c)that there are inadequacies attached to the ruling which cannot be rectified pursuant to sections 21-8 and 21-9, and which prevent processing of the appeal, and

  • (d)that the ruling was made against a party who was not presentand who was not lawfully summoned or who had a valid excuse for failing to appear.

§ 11-22 Separate processing and determination of appeal as to the proceedings of the case

(1) If an appeal is brought against both the procedure of a case and the merits of such case, the appeal against procedure shall as a general rule be determined first.

(2) The Court of Appeal may refer the case for ruling on the basis of the merits of the case despite the presence of procedural errors to which effect shall be given pursuant to section 11-21, provided that

  • (a)the Court of Appeal has jurisdiction over the review of the claim to which the appeal relates,

  • (b)the court of first instance has ruled on the claim on the basis of the merits of the case, and

  • (c)concern for the parties shall not suggest that the claim should be tried again in the said court.

(3) A ruling referring the case for determination on the basis of its merits may not be appealed separately.

§ 11-23 The determination of the appeal by the Court of Appeals

(1) The appeal shall be ruled on in the form of a judgement or an interlocutory order pursuant to section 21-1.

(2) The appeal shall be summarily dismissed if the Court of Appeal finds that it cannot succeed.

(3) The appealed ruling shall be set aside if an appeal against procedure succeeds, or if the court of its own accord gives effect to a procedural error pursuant to section 11-21(2). The Court of Appeal may decide that the further processing of the case following the setting aside of the appealed ruling shall be dealt with by a different court or different judges. The case shall be summarily dismissed if the basis upon which the ruling was set aside implies that further processing of the case is not permitted.

(4) If an appeal against the ruling on the merits of the case succeeds, the Court of Appeal shall make a new ruling on the merits of the casein so far as it has the requisite basis for doing so. In all other respects, paragraph (3) shall apply correspondingly.

§ 11-24 Further proceedings subsequent to a ruling having been set aside

(1) Subsequent to a ruling having been set aside, the case shall be sent to the court that shall deal with the further processing of the case.

(2) The court shall of its own accord see to the further processing of the case. During the subsequent proceedings, the court of first instance shall apply the interpretation of the law which the Court of Appeal applied in setting aside the original ruling.

Chapter 12. Appeal to the Supreme Court

§ 12-1 The Supreme Court as the appellate court

(1) The Supreme Court shall be the appellate court concerning rulings from the Court of Appeal as well as appeals brought against judgements in respect of which permission for direct appeal has been granted pursuant to section 12-2.

(2) Appeals brought against interlocutory orders and decisions shall be determined by the Appeals Committee of the Supreme Court.

§ 12-2 Direct appeal to the Supreme Court

(1) Permission may be granted to bring an appeal against a judgement which would otherwise come under the jurisdiction of the Court of Appeal, directly before the Supreme Court. Such permission may only be granted if the case involves particularly important issues of principle concerning which it is important to promptly ascertain the view of the Supreme Court, and provided that the need for the case to be dealt with in a sound manner does not weigh against direct appeal. Permission for direct appeal may not be granted in respect of appeals brought against judgements passed on the basis of small claims procedure or simplified judgement proceedings.

(2) As a general rule permission for direct appeal shall be granted in respect of the case as a whole. However, permission for splitting the processing and the adjudication may be granted provided that such split is permissible pursuant to section 15-6, and further provided that it would clearly be expedient to the further processing of the case that one of the claims or one of the grounds for the prayer for relief be processed and ruled on separately by way of direct appeal pursuant to paragraph (1).

(3) An application for direct appeal may be submitted by the appellant or the respondent, and shall be submitted within the time limit applicable to the submission of the reply. Section 11-10 applies correspondingly to the Municipal Court’s preparation of the appeal, provided however that the case shall be sent to the Supreme Court.

(4) Permission for direct appeal may be withdrawn if the further preparation of the case reveals that the appeal ought to be ruled on by the Court of Appeal on account of the presentation of evidence.

(5) If permission for direct appeal is not granted or is withdrawn pursuant to paragraph (4), the case shall be sent to the Court of Appeal for processing and determination of the appeal pursuant to the provisions of Chapter 11. Section 11-13 shall not apply if permission for direct appeal has been withdrawn pursuant to paragraph (4).

(6) The remainder of the appeal shall be sent to the Court of Appeal, if permission for a limited direct appeal has been granted pursuant to paragraph (2), second sentence.

(7) Rulings concerning the granting of permission pursuant to paragraphs (1) or (2) or as to withdrawal pursuant to paragraph (4) shall be made by the Appeals Committee of the Supreme Court.

§ 12-3 Corresponding application of the provisions pertaining to appeals to the Court of Appeal

Sections 11-2 to 11-12 and sections 11-19 to 11-24 shall apply correspondingly to appeals to the Supreme Court, subject to any modifications pursuant to the provisions of this Chapter. Rulings pursuant to section 11-12 can be made by the Appeals Committee of the Supreme Court.

§ 12-4 Limitations to the right of second-tier appeals against interlocutory orders

Where an appeal to the Court of Appeal has been determined by way of interlocutory order, such ruling shall not be open to second-tier appeal. Second-tier appeal shall nevertheless be available if

  • (a)the ruling summarily dismisses a case from the lower court on the grounds that the courts lack jurisdiction over the case or that the case has been determined by an unappealable final judgement,

  • (b)the appeal is based on the procedure of the case before the Court of Appeal,

  • (c)the appeal is based on the general legal interpretation of a written legal rule, or

  • (d)the appeal is based on a ruling concerning access to evidence pursuant to section 25-11.

§ 12-5 Consent to proceed with appeals brought against judgements

(1) Appeals against judgements shall not proceed without consent. Such consent shall only be given if the appeal is concerned with issues whose significance extends beyond the current case, or if it is for other reasons important to have the case tried in the Supreme Court.

(2) The issue of consent shall be determined in respect of each appeal. Consent may be limited to specific claims and to specific grounds of appeal, hereunder more specifically invoked errors as to the application of law, procedure or the factual basis of the underlying ruling.

(3) The issue of consent shall be determined by the Appeals Committee of the Supreme Court by way of a decision. Refusal of or limitations on consent require unanimity.

§ 12-6 Disallowance of appeals brought against interlocutory orders and decisions

An appeal against an interlocutory order or a decision may be disallowed if it does not raise issues whose significance extends beyond the current case, and other concerns do not suggest that the appeal should be tried on its merit. Section 12-5(2) and (3) shall apply correspondingly.

§ 12-7 New claims, widening of the prayer for relief, new factual basis and new evidence

(1) Unless special grounds suggest otherwise new claims cannot be asserted, the prayer for relief in respect of claims made may not be widened and, new factual basis or new evidence may not be submitted after consent to appeal has been given pursuant to section 12-5, or permission for direct appeal has been granted pursuant to section 12-2. Whether such special grounds apply shall be determined by the Appeals Committee of the Supreme Court.

(2) A time limit may be set for additions or amendments as referred to in paragraph (1) in respect of appeals against interlocutory orders and decisions.

§ 12-8 Further preparation of the case

(1) Unless the appeal is determined by way of refusal of consent pursuant to section 12-5, disallowance of the appeal pursuant to section 12-6, or setting aside and summary dismissal pursuant to section 11-12, cf. section 12-3,section 11-14(1) shall apply correspondingly.

(2) Section 11-14(2) shall apply correspondingly to appeals brought against interlocutory orders and decisions. Paragraph (3) shall apply if the appeal is to be ruled on by the Supreme Court following oral proceedings in full or in part pursuant to sections 12-9(4) or 12-12(1).

(3) Sections 9-4 and 9-5(3), first sentence, shall apply correspondingly to appeals against judgements. It may be decided that the parties shall make final written submissions pursuant to section 9-10(2). Time frames may be prescribed for the submissions of the parties during the appeal sitting.

§ 12-9 Type of deliberation and basis for ruling on appeals brought against interlocutory orders and decisions

(1) Appeals against interlocutory orders and decisions shall normally be ruled on following written proceedings.

(2) The appeal may be summarily dismissed or dismissed without more detailed reasons for such summary dismissal or dismissal being specified, if the Appeals Committee of the Supreme Court unanimously finds that the appeal shall clearly not succeed.

(3) The Appeals Committee of the Supreme Court may determine that court sittings shall be held for more detailed proceedings concerning parts of the issues raised on appeal to the extent required for the case to be dealt with in a sound manner. Section 12-11 shall apply correspondingly to the oral proceedings before the Appeals Committee to the extent appropriate.

(4) If pursuant to section 5, first paragraph, cf. section 6, first paragraph, of the Courts of Justice Act it is decided that the case shall be ruled on by a panel of five judges, it shall at the same time be determined whether the proceedings shall be in writing or take place pursuant to the provision of sections 12-10 and 12-11 concerning appeals against judgements. A determination as to oral proceedings may also be made later by the preparing judge pursuant to section 21-2(2) or by the court dealing with the case.

§ 12-10 Type of proceedings and basis for ruling on appeals brought against judgements

(1) Appeals against judgements shall be ruled on following an oral appeal hearing. Written submissions pursuant to paragraph (2) and factual descriptions pursuant to paragraph (3) shall form part of the basis for ruling on the case. It may, pursuant to paragraph (4), be determined that the appeal shall be ruled on following written proceedings.

(2) The court may determine that the parties shall make written submissions on specified factual and legal issues relating to the case.

(3) The ruling on appeal may be based on the factual descriptions in the judgements of the Municipal Court and the Court of Appeal without such factual descriptions being reviewed, in so far as the descriptions are not contested

(4) The Appeals Committee of the Supreme Court may determine that the proceedings shall take place in writing if the issues raised by the case are suited for being dealt with in such a manner. The second to the fourth sentence of section 11-16(5) shall apply correspondingly. Section 12-11 shall apply to the extent appropriate to any appeal hearing sitting after the written submissions.

§ 12-11 The oral appeal hearing

(1) Court-appointed experts may be examined directly before the Supreme Court. The presentation of evidence shall in other respects take place pursuant to section 29-2.

(2) Sections 9-13, 9-14, 9-17, 9-18 and 11-18(1), second sentence, paragraph (2), second and third sentences and paragraph (3) shall apply to the appeal hearing as far as they are appropriate. Each party shall be permitted to address the court twice. The second address of a party shall be limited to issues raised by the opposite party and to the oral testimony of the experts. Experts being examined directly before the Supreme Court shall testify after the parties having given their first address, unless the Supreme Court determines otherwise.

§ 12-12 The processing of cases which shall be ruled on by more than five judges

(1) If a case or legal issue shall be ruled on by the Supreme Court sitting with more than five judges pursuant to section 5, fourth paragraph, of the Courts of Justice Act, such case shall always be dealt with pursuant to sections 12-10(1) to (3) and 12-11.

(2) If an appeal pursuant to paragraph (1) raises issues which may lead to provisions laid down by statute or provisional ordinance or decisions by Parliament being set aside or subjected to a restrictive interpretation by virtue of such provisions or decisions potentially being contrary to the Constitution or to provisions which are binding on Norway pursuant to its international obligations, the Supreme Court shall notify the Ministry of Justice as the representative of the State. The State shall be entitled to participate in the case to the extent required to attend to the State’s interests sector in respect of the potentially conflicting provisions.

§ 12-13 Setting aside and continued processing by the lower court in case of inadequate basis for making a ruling etc.

(1) If the processing of the case shows that there are or may be errors as to the factual or legal basis for the ruling under appeal, and if there is no sound basis for ruling on the claim to which the case relates, such ruling shall be set aside.

(2) The first paragraph shall apply correspondingly if in order to rule on the appeal it is necessary to consider evidence which has not been assessed in the ruling under review, and it is important on account of sound and appropriate proceedings that such assessment first takes place in the lower court.

(3) During the preparation of the case it may be determined that the proceedings before the Supreme Court shall be limited in such a way that issues in dispute which may be referred to the lower court for processing pursuant to paragraph (2) shall at the outset be excluded from the proceedings.

§ 12-14 Setting aside the ruling by the court of first instance as well

(1) If an error that leads a ruling being set aside also affects the ruling of the court of first instance, both rulings shall be set aside. However, this shall not apply if the Court of Appeal in dealing with the case anew may determine such case on its merits and this would lead to an appropriate processing of the case.

(2) If that the ruling of the court of first instance is set aside without the case also being summarily dismissed section 11-24 shall apply to the continued processing of the case in the court of first instance.

Chapter 13. Reopening

§ 13-1 Scope. Which court shall determine whether to reopen a case

(1) This Chapter applies to the reopening of cases that have been ruled on by unappealable final judgement.

(2) Rulings of the Conciliation Board may be reopened by application to the Municipal Court.

(3) Rulings of the Municipal Court and the Court of Appeal may be reopened by application to a court of the same designation in a neighbouring judicial district to that of the court having made the original ruling.

(4) Rulings of the Supreme Court, including the Appeals Committee of the Supreme Court, may be reopened by application to the Supreme Court. Such application shall be ruled on by the Appeals Committee of the Supreme Court.

§ 13-2 Rulings which may be reopened

(1) Legally enforceable rulings which conclude the processing of a claim may be reopened. Interim rulings may not be reopened.

(2) If a case has been dealt with by more than one instance only the ruling of the last instance may be reopened. However, this shall not apply if the basis for reopening is circumstances outside the scope of the proceedings in the last instance.

(3) Decisions disallowing an appeal and interlocutory orders dismissing an application for reinstatement may only be reopened on the basis of errors in the legal proceedings as referred to in section 13-3.

(4) Judgements and interlocutory orders setting aside a ruling may be reopened until a new ruling on the merits of the case has been made. Paragraph (3) shall apply correspondingly.

§ 13-3 Reopening on the basis of errors in the legal proceedings

(1) Reopening may be applied for if:

  • (a)a judge who according to law was not entitled to serve has participated in the processing of the case,

  • (b)there are reasonable grounds for suspecting that a judge or other person having undertaken work or assignments for the court, the opposite party, or a person having acted in the case for the opposite party, has committed a criminal offence in connection with the processing of the case,

  • (c)there are reasonable grounds for suspecting that a witness has made a false statement,

  • (d)in ruling on a complaint against Norway in respect of the same subject matter it has been determined that the proceedings of the case have violated a treaty which pursuant to the Act of 21 May 1999 No. 30 (the Human Rights Act) has been incorporated into Norwegian law, or

  • (e)the application is made by a party who was not present during the processing of the case either because such party was not lawfully summoned or because such party h had a valid excuse for failing to appear.

(2) A criminal offence in respect of which the accused has been acquitted may not be invoked unless the court has found it proven that he has committed the illegal act.

§ 13-4 Reopening on the basis of errors in the ruling

Reopening may be applied for if:

  • (a)information as to factual circumstances which was unknown at the time of the case being ruled on suggests that the ruling would in all likelihood have been different, or

  • (b)a binding ruling made by an international court or an opinion issued by the Human Rights Committee of the UN in respect of the same subject matter suggests that the ruling was based on an incorrect application of international law.

§ 13-5 General limitations to the right of reopening

(1) Reopening shall not be applied for on grounds which were dismissed during the proceedings of the case. Grounds are not regarded as having been dismissed through a decision to refuse or disallow an appeal pursuant to sections 11-13 (1), 12-5 or 12-6.

(2) Reopening shall not be applied for on grounds which the party ought to have asserted during the course of the ordinary proceedings of the case, or during appeal or an application for reinstatement.

(3) Reopening shall not take place if it must be assumed that renewed processing of the case would not lead to an amendment of importance to the party.

§ 13-6 The time limits for reopening

(1) An application for reopening shall be submitted within six months of such time as the party became aware of, or ought to have become aware of, the grounds upon which such application is based. If the application is based on a criminal offence a new time limit shall apply from such time as the accused has been convicted by way of a legally enforceable judgement.

(2) A case shall not be reopened after more than ten years. Reinstatement in respect of failure to observe such time limit shall not be granted.

§ 13-7 The application for reopening

(1) An application for reopening shall be submitted to a court having jurisdiction over the processing of such application pursuant to section 13-1(2) to (4).

(2) The application shall specify

  • (a)the court to which the application is being submitted,

  • (b)the names and addresses of the parties, the legal representatives and counsel,

  • (c)the ruling in respect of which reopening is being applied for,

  • (d)whether the application relates to the ruling in its entirety or only to parts thereof,

  • (e)the grounds for reopening pursuant to sections 13-3 and 13-4,

  • (f)the factual and legal basis for asserting that such grounds give rise to a right of reopening,

  • (g)the evidence which will be presented to the court concerning the right of reopening,

  • (h)the claim which will be asserted in the reopened case and a prayer for relief specifying the outcome demanded by the claimant in respect of the application and the reopened case,

  • (i)the evidence which will be presented in the reopened case,

  • (j)the basis upon which the court may deal with the application, if there can be doubt as to this, and

  • (k)the views of the claimant on the further proceedings of the case.

(3) Section 9-2(3) shall apply correspondingly.

§ 13-8 The processing of the application by the court

(1) The application for reopening shall be dealt with pursuant to the provisions relating to appeals against decisions and interlocutory orders to the extent that these are appropriate. Sections 12-6 and 12-9(2) shall not apply.

(2) The court shall of its own accord try whether the conditions for reopening are fulfilled. The court may request the prosecuting authority to undertake an investigation if a possible criminal offence has been asserted as grounds without prosecution having been initiated.

(3) If the application is upheld the reopened case shall be dealt with pursuant to the ordinary provisions concerning the processing of the relevant type of case.

(4) The court may determine that the application and the claim or legal controversy to which such application relates shall be dealt with jointly pursuant to the provisions of paragraph (3).

(5) The Appeals Committee of the Supreme Court may determine that an application for reopening or a reopened case shall be referred to the Court of Appeal in full or in part, if the Committee unanimously finds that concerns as to the presentation of evidence make such referral appropriate.

(6) A judge who has participated in making the ruling which is being challenged shall not participate in a case concerning the reopening of same.

§ 13-9 Simplified ruling on the application

(1) The court may rule on the application without further proceedings, provided that it is obvious that it shall have to be summarily dismissed for reasons which cannot be rectified, or be dismissed on the grounds that its basis is inadequate.

(2) In the Court of Appeal and in the Appeals Committee of the Supreme Court, a ruling on the application pursuant to paragraph (1) shall be unanimous.

Part V – General provisions Chapter 14. Valuation

§ 14-1 Which cases valuation shall take place in respect of

(1) Valuation shall take place pursuant to the provisions of sections 14-2 to 14-5 in cases of a pecuniary nature.

(2) The valuation provisions shall not apply if the case from the point of view of the claimant or the appellant concerns moral rights.

(3) The court shall of its own accord determine the value of the subject matter under dispute, to the extent that such value is relevant to matters of jurisdiction or type of procedure.

(4) Errors in the valuation of the subject matter under dispute may not be used as grounds for asserting invalidity of a judgement.

§ 14-2 The basis of the valuation. Overturning the valuation.

(1) The value of the subject matter under dispute shall be the value of the claim to the claimant at the time of such claim having been put forward in the case. On appeal the value shall be the difference in value between the outcome in the lower court and the claim of the appellant at the time of the appeal being lodged.

(2) To assist the court, the claimant shall in the writ of summons estimate the value of the subject matter under dispute in monetary terms, unless the prayer for relief itself is formulated by reference to a specific sum of money. The same shall apply to the appellant in case of appeal.

(3) The estimated value is not binding on the court.

(4) The court may decide to procure evidence as to the value.

(5) The valuation of the court may be overturned on appealif it is contrary to the provisions of this Chapter. The determination of the court as to the factual basis of the valuation or its discretionary assessment of the same shall otherwise only be overturned if it is obviously incorrect and it must have resulted in a valuation which is significantly higher or lower than it ought to have been.

§ 14-3 What shall be included in the valuation

(1) The subject matter in dispute shall comprise the claim put forward in the case in its entirety, including return on capital and compensatory damages on account of breach of contract or consequential loss.

(2) Interest accrued prior to the claim having been put forward in the case shall only be included in the valuation if the claim for interest is contested. Interest and costs accrued subsequent to the date which is the basis for the valuation pursuant to section 14-2(1) shall not be included.

(3) Several claims directed against one or more respondents in the same case shall be cumulated. Claims and counterclaims shall not be added together.

§ 14-4 Special valuation provisions

(1) Payments which are to be made an unspecified number of times shall be valued at ten times the annual amount of such payments. Payments which are to be made a specific number of times shall be valued by multiplying the amount of each payment by the number of times it is to be made, provided however that such payments shall not be valued at more than ten times the amount of the annual payments. The valuation shall be based on the payments relating to the year immediately prior to the institution of legal proceedings if the amount of the payments varies.

(2) In cases relating to security interest or other security in rem, the valuation shall be based on the amount of the debt. Only the secured amount shall be taken into consideration if such secured amount is less than the amount of the debt or if the value of the collateral is less than the amount of the debt.

§ 14-5 Valuation provisions related to the base rate of the National Insurance system

(1) [Not applicable]

(2) For valuation purposes the base rate of the National Insurance system at the time of the claim being put forward in the case shall be applied. On appeal the amount of the base rate at the time of the appeal being lodged shall be applied. Subsequent amendments to the base rate shall not be taken into consideration, even though effected retroactively.

Chapter 15. Joinder

§ 15-1 Several claims

(1) The claimant may in one and the same action put forward several claims against the same respondent, if

  • (a)the claims fall under Norwegian jurisdiction,

  • (b)the court is the correct venue concerning one of the claims, and

  • (c)each of the claims may be processed with the same composition of the court and in the main pursuant to the same procedural provisions. Joinder of claims shall not be prevented by the court due to the processing of one of the claims having to sit with lay judges or more than one professional judge. The action may under such circumstances be split pursuant to section 15-6 if the procedural costs or other concerns so suggests, so that the court only sits with lay judges or more than one professional judge when processing the claims in respect of which there are specific reasons for such composition of the court.

(2) The respondent may put forward claims against the claimant, provided that the conditions pursuant to paragraphs (1)(a) and (c) are fulfilled.

(3) Section 9-10, cf. section 9-16, shall apply in addition, provided that amendments pursuant to paragraphs (1) and (2) are made subsequent to the completion of the preparation of the case.

(4) If joinder of a claim is disallowed, and the claim falls within Norwegian jurisdiction, such claim shall be dealt with in a separate action if applied for by the party within a time limit determined by the court. Section 4-6 shall apply correspondingly.

(5) Section 11-4 shall apply to the joinder of new claims before the appellate courts.

§ 15-2 Several parties as claimants or respondents

(1) Several parties may act as claimants or respondents in one action if

  • (a)the conditions pursuant to section 15-1(1)(a) to (c) are fulfilled, and

  • (b)no party raises objections, or the connection between the claims is so close that they should be dealt with in the same action.

(2) During the course of the action one or more parties may include claims against third parties, provided that the conditions pursuant to sections 15-1(1)(a) and (c) and 15-2(1)(b) are fulfilled.

(3) The court may disallow a party to include a claim against a third party pursuant to paragraph (2), if such inclusion would considerably delay or complicate the processing of claims which have previously been made the subject of legal action. Subsequent to the completion of the preparation of the case, section 9-16 shall in addition apply correspondingly.

(4) Section 15-1(4) shall apply correspondingly.

(5) This provision shall not apply to the appellate court. The acquirer of the asset to which the action relates may nevertheless be subjected to joinder on appeal.

§ 15-3 Joinder of a third party

(1) A third party may be joined to the proceedings, provided that

  • (a)the conditions pursuant to section 15-1(1)(a) and (c) are fulfilled, and

  • (b)the third party wishes to submit a separate prayer for relief concerning as to the subject matter under dispute in the action, or the claim being put forward is sufficiently connected to the original claim that it ought to be dealt with in the action.

(2) Section 15-2(3) to (5) shall apply correspondingly.

§ 15-4 Method of effecting joinder of claims and parties

Joinder is effected by written submission or at a court sitting. If joinder is effected by written submission, such submission shall as far as the joinder is concerned fulfil the requirements applicable to a writ of summons, cf. section 9-2. The court shall in such case determine whether a reply respecting the joinder shall be required. The provisions as to reply and inadequate or non-submitted reply shall apply if a reply is required.

§ 15-5 The relationship between different parties on the same side

(1) Different parties on the same side of the legal action shall be regarded as independent parties as against the opposite party. Evidence presented by one party shall serve as evidence in respect of all parties.

(2) If the same judgement must be passed for all parties, procedural steps made by one party shall benefit other parties on the same side, even if contrary to the procedural steps of such other parties

§ 15-6 Splitting the proceedings and the adjudication

(1) The court may determine that separate proceedings shall take place in respect of one or some of the claims in the action, or in respect of one or more of the points in dispute concerning a claim.

(2) The court may rule separately on one or more of the claims in the action, or on part of a claim. Ruling on a claim for compensatory damages or other claim in respect of which the scope is in dispute may be split in such a way that determination of the scope as such is postponed. Grounds for a prayer for relief not leading to a claim being determined may otherwise only be ruled on separately with the consent of both parties.

(3) If a claim is ruled on separately and the opposite party has put forward a claim against it which is not being ruled on at the same time, such ruling shall not be enforced without the court having so determined. The court may make enforcement conditional upon security being furnished.

§ 15-7 Consolidation of cases for joint processing

Actions raising similar issues and which shall be processed with the same composition of the court and in the main pursuant to the same procedural provisions, may be consolidated for joint processing and joint ruling. Section 4-6(2), cf. section 38 of the Courts of Justice Act, shall apply.

§ 15-8 Intervention

(1) Intervention shall be permitted from

  • (a)whoever has a real need for one of the parties to win, for reasons to do with his own legal status, and

  • (b)organisations or associations or other entities and public bodies charged with promoting specific interests, in cases that fall within paragraph 1-4.

(2) Intervention shall be declared by written submission or at a court sitting prior to the case being ruled on by unappealable final judgement. The declaration shall specify the basis for intervention. The declaration shall be notified to the parties with a time limit for contesting the intervention. If the declaration is contested the issue of entitlement to intervention shall be determined by interlocutory order. An interlocutory order permitting intervention may not be appealed. The ruling is only binding as to the proceedings in the same court. The person having declared the intervention may exercise procedural rights pursuant to paragraphs (3) and (4) until an interlocutory order refusing intervention has been passed.

(3) The intervener enters the action as it is at the time of entry. The intervener may take procedural steps for the benefit of the party who is to benefit from the support. Such procedural steps shall not be contrary to those of the party.

(4) If the intervention is based on paragraph (1)(b), the procedural rights of the intervener shall be limited to attending to such interests the organisation, association or body has in the legal issues raised in the action. The intervener shall in such case not seek recourse against the ruling on the claim having been put forward in the action.

§ 15-9 Third-party notice

(1) If it is of importance to a the party to notify third party as to the action, he may notify such third party by written submission, which shall be served. The written submission shall include the necessary details concerning the action and the reason for the notification.

(2) A third party having been notified pursuant to paragraph (1) may also issue a notice pursuant to paragraph (1), provided that it is of importance to him to notify a different third party.

Chapter 16. Written submissions

§ 16-1 General provisions concerning written submissions

(1) The submissions of the parties to the court in respect of the action outside court sittings shall be made in the form of written submissions.

(2) Parties not represented by counsel may orally submit a writ of summons, reply, notice of appeal, application for reinstatement and application for reopening by appearing in court in person. The court shall make note of the procedural step in the form of a written submission. The court may permit other counsel than advocates to take such oral procedural steps. If appearance in court in person is not practicable or would be unreasonably burdensome or expensive, the court may permit the oral communication to take place in the form of a long-distance examination. Section 24-10(2)(on long-distance examination) shall apply correspondingly.

§ 16-2 The contents of written submissions

(1) Written submissions shall specify

  • the relevant court,

  • the number of the case,

  • the parties,

  • counsel to the parties, and

  • the exhibits enclosed, and whether it is demanded that these be exempted from the right of inspection pursuant to section 18-4.

(2) Written submissions shall be signed

(3) Written submissions shall serve to clarify the disputed issues and explain the views of the parties on the processing of the case.

(4) Written submissions shall be formulated and dispatched in such a manner that the need for orderliness in the communications between the court and the parties is attended to.

§ 16-3 Submission to the court

(1) Written submissions, including exhibits, shall be sent electronically to the court. In case of temporary technical failure the written submission may be sent by a different method, provided that it is also sent electronically as soon as possible thereafter.

(2) Counsel who is not an advocate may send written submissions in the form of a hardcopy by permission of the court. Parties not represented by counsel may always use hardcopies. In such case the written submission shall be sent in a sufficient number of copies for the court to be able to keep one.

(3) Evidence which by its nature will loose a significant part of its value as evidence if submitted electronically, may be submitted by a different method. The court may demand that an electronic version of the evidence is submitted in addition.

§ 16-4 Direct transfer of written submissions

Written submissions between parties who are represented by advocates shall be sent directly to the opposite party pursuant to section 16-3 at the same time as they are sent to the court.

§ 16-5 Service of written submissions

The court shall ensure that written submissions instituting legal proceedings, adding new claims to the case or contesting a legal ruling shall be served on the opposite party.

Chapter 17. Court sittings and court records I. Court sittings

§ 17-1 Court sittings and long-distance meetings

(1) The parties’ submissions to and communications with the court shall take place at court sittings, unless they take place in the form of written submissions.

(2) By a long-distance meeting is meant a meeting in which not all participants are present in person at the same place, but instead are in contact with the other participants via video or telephone conference.

(3) Court sittings may fully or in part take place in the form of long-distance meetings when

  • (a)specifically provided, or

  • (b)the parties consent to the court sitting taking place in the form of a long-distance meeting.

(4) The Courts of Justice Administration may prescribe more detailed provisions on long-distance meetings, including an experimental scheme for the use of long-distance meetings during main hearings and other court sittings.

§ 17-2 Summons of parties for a court sitting

(1) The court shall serve a summons for a court sitting on all parties who are under an obligation to attend in person. The same shall apply if the party not attending in person would be tantamount to non-attendance. The parties shall be notified of other court sittings by such method as the court deems fit.

(2) Parties represented by counsel who is an advocate shall be summoned through the advocate. Parties not represented by an advocate shall be summoned directly by the court. At least two weeks notice shall be given, unless special concerns suggest a shorter time limit.

(3) Parties under obligation to attend in person shall be summoned directly by the court, irrespective of whether such party is represented by an advocate. A party having been summoned pursuant to paragraph (2) may be ordered to attend in person with such period of notice as applies to witnesses pursuant to section 17-3(2).

(4) The summons shall specify the case and the purpose of the court sitting, and provide the party with such details as are required to comply with the obligation to attend. The summons shall include brief details on any provisions on compensation for attendance, as well as on the liability for non-attendance.

§ 17-3 Subpoena of witnesses and experts for a court sitting

(1) Advocates shall ensure that witnesses called by their party are subpoenaed, unless the court determines otherwise. The court may order the party himself or his counsel who is not an advocate to undertake the subpoena. In all other cases, the court shall subpoena the witnesses. The subpoena shall be served on witnesses who are under an obligation to attend.

(2) Witnesses shall if possible be given one week’s notice. The notice period may be reduced to one day if required on account of the need for swift processing of the case, or if arrangements are made in order for the witness to be examined without neglecting important tasks. Witnesses who are in the vicinity of the court premises or a location where a long-distance examination may take place are obliged to appear at once if this is possible without causing significant inconvenience to the witness.

(3) The subpoena shall include such details as apply in respect of parties pursuant to section 17-2(4). Section 27-3(2) shall, in addition, apply to subpoena of witnesses who are entitled to refuse to testify.

(4) The court shall serve a subpoena on an expert who is to testify in the court sitting pursuant to section 28-5(2), with a suitable period of notice.

§ 17-4 Valid excuse for non-attendance

(1) Illness and other obstacles outside the control of the person under an obligation to attend, which make it impossible or disproportionately burdensome for such person to attend shall constitute valid excuses for non-attendance at a court sitting. The fact that a person has not been lawfully summoned or subpoenaed, and has been unaware of the court sitting through no fault of his own, shall also constitute a valid excuse for non-attendance unless the summons or subpoena was effected by public announcement pursuant to section 181 of the Courts of Justice Act.

(2) Obstacles as mentioned in paragraph (1), first sentence, do not constitute valid excuses for non-attendance in respect of a party if such party is represented by counsel or ought to have instructed counsel in time, and the attendance of such party in person is not required on account of the need for the case to be dealt with in a sound manner.

(3) Where Counsel is prevented from attending for reasons mentioned in paragraph (1), first sentence, this shall also constitute a valid excuse for non-attendance for a party, provided that instructions ought not to have been transferred to someone else in time.

(4) Whoever has a valid excuse for non-attendance at a court sitting shall at once inform the court accordingly.

§ 17-5 Rescheduling or adjournment of court sittings in case of non-attendance

(1) A party having a valid excuse for non-attendance at a court sitting may demand that such sitting be rescheduled.

(2) If a party is absent from a court sitting, and there is reason to believe that he has a valid excuse for non-attendance, such court sitting shall be adjourned until the reason for his non-attendance has been clarified. If there is no reason to believe that he has a valid excuse for non-attendance, the case shall be ruled on by way of interlocutory order or judgement pursuant to sections 22-5 or 22-6. If the conditions for such ruling are not fulfilled, and the case cannot be tried on its merits in the absence of the party, the court sitting shall be rescheduled.

§ 17-6 Rescheduling for other reasons

(1) The court may reschedule court sittings if required to ensure that the case is dealt with in a sound manner, or if other weighty reasons so suggest. In determining whether to reschedule, the court shall attach weight to the need for swift, sound and cost-effective proceedings.

(2) Rescheduling shall to the extent possible be for a specific time and date.

II. Court records

§ 17-7 Keeping of court records

At court sittings a court record shall be kept pursuant to section 17-8. The contents of testimony and the findings of inquiries shall be reflected in the court record to the extent provided by sections 17-9 to 17-11.

§ 17-8 The contents of the court record

(1) The court record shall specify

  • (a)the court, the time and place of the sitting, the names of the judges and the parties, the number of the case and the purpose of the sitting,

  • (b)whether the parties are present in person, who is representing them, the names of witnesses and experts,

  • (c)the prayers for relief made by the parties,

  • (d)applications for and objections to procedural matters, and

  • (e)judicial rulings and orders made at the sitting, unless these are issued by way of separate documents.

(2) The proceedings shall be recorded as they unfold. A party making a settlement offer may demand that it be included in the court record.

(3) Recording may take place by reference to previous court records or to appended documents. The court may require that the prayers for relief and applications made shall be entered in such a way that they may be appended to the court record, provided that the party in question is represented by counsel.

(4) The court record shall be signed by the presiding judge and the keeper of the record.

§ 17-9 Recording of statements by parties and witnesses at a main hearing

(1) The testimony of parties and witnesses at the main hearing shall be recorded.

(2) Such recording need not take place if the testimony is entered in the court record, cf. section 17-10, or in cases dealt with pursuant to the provisions of Chapter 10.

(3) The person to be examined shall be notified that his testimony will be recorded.

(4) The parties are entitled to have the recordings on loan to the same extent that they have a right of inspection of the other procedural materials of the court. The same shall apply to the person whose testimony has been recorded.

(5) If a transcript of the recording is to be made, the court shal, determine whether it shall see to this itself or leave it to the parties to the action.

(6) The recording shall be filed together with the case. The

Courts of Justice Administration may prescribe more detailed provisions as to the recording.

§ 17-10 Entering testimony given at the main hearing in the court record

(1) The court may decide that the main points from the testimony of parties and witnesses at the main hearing before the Municipal Court or before the Court of Appeal shall be entered in the court record. Such entering of testimony in the court record shall take place if recordings are not made pursuant to section 17-9.

(2) The court shall determine whether the entering of testimony in the court record shall take place while the testimony is being given by parties or witnesses or subsequent to the main hearing. The court shall determine to what level of detail the testimony shall be entered.

(3) The testimony as entered shall be sent to the parties to the action.

§ 17-11 Statements made by parties and witnesses outside the main hearing

(1) Statements made by parties, witnesses or experts outside the main hearing for reasons of securing evidence shall be entered in the court record and then read aloud for confirmation.

(2) The court may instead of entering the statement decide on audio or video recording. Section 17-9 shall apply correspondingly.

(3) Other statements from parties, witnesses and experts shall be entered in the court record to the extent that the court finds cause to do so.

Chapter 18. Right of inspection

§ 18-1 The right of inspection of the parties

(1) The parties are entitled to inspect written submissions, court records, judicial rulings and other documents relating to the case at the court, and may demand copies or electronic transfer of such documents.

(2) The right of inspection pursuant to paragraph (1) does not apply to the internal documents of the court.

(3) A person who by virtue of his own legal position has a need for inspection has the same right of inspection as that of the parties to the action pursuant to paragraphs (1) and (2).

§ 18-2 The right of inspection of the general public

Majority proposal:

The general public has a right of inspection of

  • (a)court records and judicial rulings,

  • (b)final written submissions pursuant to section 9-10,

  • (c)written submissions pursuant to section 9-9(2) to (4), pursuant to section 11-16(3) to (5) or pursuant to section 12-10(2) and (4), and

  • (d)written evidence presented in such a manner that the court may base its ruling on such evidence.

Minority proposal:

With the exceptions that follows from paragraphs 18-3 and 18-4, the general public has the same right of inspection of the documents of the case as the parties.

§ 18-3 Exceptions from the right of inspection of the general public as to court records and rulings of the court

(1) The right of inspection of the rulings of the court shall only apply to the extent that reproduction in public is not prohibited. such prohibition is in force and the ruling is no more than five years old, the right of inspection shall be restricted to the conclusion of the ruling. Inspection of the court record may be demanded, unless it has been entered at a court sitting in camera, or reproduction in public of the recorded proceedings or the court record is prohibited.

(2) Inspection may be restricted to the conclusion of the judgement, if in the interests of national security or relations with a foreign State it would be inadvisable to allow inspection or provide transcripts, or if there is reason to fear that the transcript or knowledge will be used in an unlawful manner. The same shall apply if the court has imposed an order of secrecy.

§ 18-4 Exceptions from the right of inspection of the general public as to the other documents relating to the case

(1) The right of inspection of the documents relating to the case shall not apply to

  • (a)cases pursuant to the Marriage Act,

  • (b)cases pursuant to the Child Act,

  • (c)cases between spouses or divorcees concerning division or allotment of their assets, or

  • (d)cases pursuant to Chapter 33 of this Act.

The court may grant a right of inspection in full or in part for special reasons. The same shall apply to corresponding cases between persons who are or who have been cohabiting.

(2) Inspection of the documents relating to the case shall not be permitted whenever

  • (a)considerations regarding the relations of the State with a foreign State so require,

  • (b)considerations regarding privacy or concerns of a strictly personal nature so require,

  • (c)special concerns give reason to fear that publicity will impede the clarification of the case, and refusal of inspection is required for such reason, or

  • (d)considerations in times of war regarding military operations, the safety of military forces or other special reasons so require.

(3) The court shall refuse inspection of evidence in respect of which there is a right to demand that it be presented in camera pursuant to Chapter 25

  • (a)relating to trade or business secrets,

  • (b)relating to information of importance to national security or relations with a foreign State,

  • (c)relating to issues subject to a statutory duty of confidentiality,

  • (d)relating to proceedings in respect of which an order of secrecy has been imposed, or

  • (e)relating to confidences imparted to those involved in certain occupations.

(4) Inspection of psychiatric reports shall only be permitted to the extent prescribed by the King by way of regulations.

(5) If important parts of the documents relating to the case have been excepted from the right of inspection, inspection of the remaining documents may also be refused if partial inspection would provide a clearly misleading impression of the case.

§ 18-5 The timing of the right of inspection of the general public

Majority proposal:

(1) If a party has demanded an exception from the right of inspection, the court may determine that ruling on the issue of inspection shall be postponed provided that such postponement shall not be permitted beyond such time as the judgement or interlocutory order concluding the case has been passed. In case of doubt, the court should normally postpone its ruling on the issue of inspection until the main hearing. The court shall not further postpone its ruling on the right of inspection pursuant to this provision after a piece of evidence has been presented in open court.

(2) The right of inspection in cases determined on the basis of written proceedings shall apply from such time as the case has been ruled on in the court currently dealing with the matter.

Minority proposal:

If a party has demanded an exception from the right of inspection the court may determine that ruling on the issue of inspection shall be postponed, provided that such postponement shall not be permitted beyond such time as the judgement or interlocutory order concluding the case has been passed. In case of doubt, the court should normally postpone its ruling on the issue of inspection until the main hearing. The court shall not further postpone its ruling on the right of inspection pursuant to this provision after a piece of evidence has been presented in open court.

§ 18-6 Processing of a dispute as to right of inspection

(1) The court shall only be required to determine whether inspection shall be refused if requested by a party. The court shall nevertheless of its own accord determine whether inspection shall be refused if, on account of others than the parties to the case, provisions implying a duty of, or an entitlement to, confidentiality may apply.

(2) The right of inspection shall be assessed in respect of each single document or part thereof.

(3) A ruling to refuse inspection pursuant to sections 18-3 and 18-4 shall be made in the form of an interlocutory order. A ruling to refuse inspection pursuant to section 18-4(1) shall be made in the form of a decision. If such ruling is appealed, no inspection shall be permitted until such appeal has itself been ruled on.

(4) By written submission it shall be specified whether the exhibits, in whole or in part, are excepted from the right of inspection. Inspection shall not be permitted until the court on application from others than the parties has ruled on the issue pursuant to this provision.

§ 18-7 Regulations on inspection

The King may prescribe regulations on the implementation of the right of inspection pursuant to this Chapter.

Chapter 19. Stay of proceedings

§ 19-1 The consequences of stay of proceedings

(1) Stay of proceedings shall imply that the proceedings are stayed temporarily. Time limits are suspended. Procedural steps may only be taken with the consent of the court.

(2) Stay of proceedings shall not prevent the court from ruling on claims concerning which the proceedings have been concluded prior to the stay of proceedings.

§ 19-2 Stay of proceedings pursuant to statute

(1) The case shall be stayed effective from such time as

  • (a)the operations of the court are interrupted by a state of war or for other reasons,

  • (b)a party or legal representative dies, unless the party is represented by counsel, or

  • (c)the estate of the claimant is subjected to bankruptcy proceedings and the subject matter under dispute forms part of such estate.

(2) A case which has been stayed pursuant to paragraph (1)(a) shall be resumed by the court when the court resumes operations. A case which has been stayed pursuant to paragraph (1)(b) or (c), shall be resumed by the court on application from the relevant person or from the opposite party.

§ 19-3 Stay of proceedings by agreement

(1) The parties may once during the course of the processing of the case agree to stay proceedings for a minimum of six months. Such agreement shall enter into force upon it being received by the court.

(2) The case shall be resumed by the court on application from a party.

§ 19-4 Stay of proceedings for other reasons

(1) The court shall by application from a party stay proceedings in a case if the outcome of such case is wholly or in part dependent on a legal controversy which is to be resolved in a different case in a legally binding manner.

(2) The court may stay proceedings in a case if other weighty reasons so suggest. Weight shall be attached to the need for swift, sound and cost-effective proceedings.

(3) The issue of whether to stay proceedings pursuant to paragraphs (1) or (2) shall be determined by an interlocutory order. The stay of proceedings becomes effective once such interlocutory order has been passed.

(4) The court shall resume the case once proceedings may continue.

§ 19-5 Quashal of a stayed case

A case which may be resumed on application shall be quashed when it has been stayed for two years.

Chapter 20. The consequences of legal action etc.

§ 20-1 The consequences of instituting legal proceedings (lis pendens)

If a new legal action is brought between the same parties in respect of a claim which is already the subject matter under dispute in a pending case, such new action shall be summarily dismissed by the court. The same shall apply in respect of legal action before foreign courts, provided that the ruling in such foreign court will be legally enforceable in Norway pursuant to section 21-14.

§ 20-2 At what time the procedural consequences of the institution of legal proceedings arise and cease

(1) The consequences of the institution of legal proceedings pursuant to section 20-1 shall arise upon the application for conciliation proceedings having been received by the Conciliation Board or upon the writ of summons having been received by the court. The same shall apply to claims which are brought before the court by way of joinder through a written submission pursuant to section 15-4. For claims put forward at a court sitting, such consequences shall arise upon the claim being put forward. For claims in respect of which an application has been made for them to be adjudicated in a criminal case pursuant to Chapter 29 of the Criminal Procedure Act, such consequences shall arise upon the application being received by the prosecuting authority or the court.

(2) The consequences of the institution of legal proceedings pursuant to section 20-1 shall cease upon the case being ruled on by unappealable final judgement.

(3) If statutory law provides that a case being dealt with by a tribunal precludes legal action before the courts, such legal action shall still be permitted if through no fault of the claimant such tribunal has not determined the case within six months. In such case the proceedings before the tribunal shall be discontinued.

§ 20-3 At what time other consequences of the institution of legal proceedings arise and cease

(1) These consequences of bringing legal action that follow from other legislation shall arise upon the written submission instituting the proceedings or bringing the claim before the court by way of joinder having been sent so as to interrupt the time limit pursuant to section 146 or section 146a of the Courts of Justice Act. For claims put forward at a court sitting such consequences shall arise upon the claim being put forward.

(2) When a limitation period is interrupted by application for conciliation proceedings, such interruption shall cease to be effective unless a writ of summons has been submitted to the court within one year of the Conciliation Board having concluded dealing with the case.

(3) If the legal action is summarily dismissed or otherwise concluded without judgement, and provided that the claimant is not to be blamed for this to any significant extent, the consequences pursuant to paragraph (1) shall remain in effect if the claim is brought by way of a new legal action within three months of the interlocutory order being served on the claimant. Reinstatement shall not be availableif the three-month time limit is exceeded.

§ 20-4 Voluntary abandonment of legal action

(1) After the writ of summons or a written submission bringing a new claim into the case has been served on the opposite party, or after a claim has been put forward at a court sitting, such claim may be withdrawn from processing until such time as the court has ruled on such claimif the claim is waived. The opposite party may require a judicial ruling be made pursuant to section 9-7.

(2) The claim may be withdrawn from processing without being waived, provided that the opposite party

  • (a)agrees to this,

  • (b)has not submitted a reply, or

  • (c)has requested that the processing of the claim be summarily dismissed.

(3) In proceedings before the Conciliation Board, the claim may always be withdrawn until such time as the claim has been ruled on by the Conciliation Board.

(4) A new action in respect of respecting the claim shall not be brought until costs awarded to the opposite party have been paid.

Chapter 21. Judicial rulings I. Format and procedure

§ 21-1 Judgements, interlocutory orders and decisions

(1) The following shall be ruled on by way of judgement:

  • (a)claims that are the subject matter under dispute in a legal action, and

  • (b)appeals brought against a judgement.

(2) The following shall be made by way of interlocutory order:

  • (a)rulings summarily dismissing a case on the grounds that conditions for dealing with the case are not fulfilled,

  • (b)rulings quashing a case that has lapsed without being determined on its merits,

  • (c)rulings on appeals against interlocutory orders or decisions,

  • (d)rulings on disputes relating to evidence, and

  • (e)ruling which pursuant to statute shall be made in such format.

(3) The following shall be made by way of decisions:

  • (a)rulings on procedural issues which are not required by statute to be made by way of interlocutory order, and

  • (b)rulings refusing an appeal.

(4) The fact that a ruling is made in an incorrect format shall have no impact on its legal effect or on the right of review. On appeal, the provisions pertaining to the type of ruling which should have been made shall apply.

§ 21-2 The composition of the court. The authority of the preparing judge

(1) A ruling to be made on the basis of a court sitting shall be made by the judges having participated at such court sitting.

(2) A ruling as to procedural matters during the course of the preparation of the case shall be made by the preparing judge. Such ruling may be made by the administrator of the court or by a different judge appointed by the administrator of the court, if the preparing judge is prevented from making such ruling swiftly. The preparing judge in cases before the Supreme Court may refer the making of such ruling to the Appeals Committee of the Supreme Court.

(3) In appeal cases, the preparing judge shall not rule on:

  • (a)summary dismissal of the appeal,

  • (b)quashal of the appeal or of the case if such issue is in dispute,

  • (c)setting aside the appealed ruling due to an error in respect of which unconditional effect shall be given be attached pursuant to section 11-12(1) b, cf. section 11-21(2), nor

  • (d)consent to or refusal of appeal.

§ 21-3 Deliberation and voting

(1) In cases involving oral proceedings before courts sitting with more than one judge, the judges shall deliberate on the ruling as soon as possible after such court sitting. If lay judges are participating, the deliberation shall take place in a meeting with all judges present.

(2) In all cases a judge shall have the right to demand that final deliberations take place in a meeting with all judges being present. Lay judges shall be made aware of such right.

(3) Separate voting shall take place in respect of each claim or procedural legal controversy to be determined. If there is more than one basis for summarily dismissing, quashing or staying a case, for setting aside an appealed ruling or for applying for reinstatement or reopening, separate voting shall take place in respect of each such basis. A judge who has been outvoted on a procedural issue shall take part in such subsequent voting as the case calls for.

(4) Each ruling shall be made on the basis of majority voting unless otherwise provided by statute. In the event of a tie vote the presiding judge shall have a casting vote. Provided that there is no majority for any ruling when a sum of money or other quantity shall be determined, the votes in favour of higher amounts or quantities shall be added to the votes in favour of the closest amounts or quantities until a majority has been reached.

§ 21-4 Pronouncement

(1) A judicial ruling shall be binding on the court upon being pronounced.

(2) The ruling shall be deemed pronounced in writing when all members of the court have signed it. The presiding judge, or a professional judge designated by the presiding judge, shall be the last member of the court to sign the ruling.

(3) The ruling shall be deemed pronounced orally when it is read aloud at a court sitting. The court may summon the parties to a separate court sitting for the purpose of oral pronouncement of the ruling.

(4) Rulings by the Supreme Court in cases involving oral proceedings shall be pronounced by way of an oral vote. The ruling shall be deemed pronounced when the presiding judge, as the last judge, has voted.

(5) The ruling shall be pronounced within two weeks of the completion of the proceedings if the case is being dealt with by only one judge, and within four weeks if the case is being dealt with by more than one judge, in so far as the case is not too demanding for this to be feasible. The cause of any delay in pronouncement shall be specified in the ruling. In cases involving oral proceedings, the court shall at the completion of such proceedings notify the parties as to when the ruling may be expected to be pronounced.

§ 21-5 Service and notification

(1) Judgements, interlocutory orders and such decisions as conclude the case shall be served on the parties. They shall be notified of other decisions.

(2) Rulings pronounced orally shall be deemed to have been served on such parties as have been summoned. Where a ruling is being served by way of it being read aloud to the parties present at a court sitting, an oral account of the main aspects of the basis for the ruling may be rendered instead of such parts of the ruling being read aloud. A transcript of the ruling shall be conveyed to the parties within one day of it having been pronounced.

II. The contents of the ruling

§ 21-6 Contents and grounds

(1) The rulings of the court shall specify the court pronouncing it, the time and place of its pronouncement, the members of the court, the parties and the number of the case.

(2) The ruling shall be put in writing and be signed by the members of the court. Section 10-4(3) shall apply in respect of the scope for subsequent formulation of the grounds for the ruling in cases subject to small claims procedure.

(3) The ruling shall specify whether it is unanimous. If the ruling is not unanimous it shall be specified who is in dissent and to which aspects the dissent relates.

(4) Grounds shall be given for judgements and interlocutory orders. The description of the grounds shall include:

  • (a)A presentation of the case,

  • (b)The prayers for relief of the parties, including the grounds upon which such prayers are based, and

  • (c)The assessment of the court.

(5) The presentation of the case and the description of the grounds upon which the prayers for relief are based shall provide a focused account of the legal controversy which is the subject matter under dispute, the background to the case as well as the legal and factual arguments of the parties to the extent required to explain the ruling. The court shall thereafter describe the assessment of evidence and the application of law upon which the ruling is based. Senior courts may in full or in part base their description of the grounds on the corresponding description of the lower courts.

(6) By rulings by the Supreme Court pronounced by way of an oral vote, grounds shall be described through the votes cast by the justices.

(7) Judgements and interlocutory orders shall include a conclusion, specifying the exact outcome of the rulings made.

§ 21-7 Time limits for performance

(1) The court shall fix a time limit for meeting such obligations as will be enforceable upon pronouncement of the ruling, which time limit shall run from the time of service of the ruling. The time limit shall be two weeks in respect of pecuniary obligations, unless the claim becomes due and payable at a later date.

(2) If the time limit for seeking recourse does not leave sufficient time for the order to be complied with, the court shall specify a time limit to run from the time at which the ruling shall become legally enforceable.

(3) If an obligation is conditional, the court shall determine which condition shall be fulfilled in order for the ruling to be enforceable.

III Rectification, supplementary judgement and reversal

§ 21-8 Rectification of errors

(1) The court may decide to rectify a ruling which due to spelling errors, arithmetic errors, misunderstandings, oversights or other obvious errors has been formulated in a way which does not reflect the intention of the court.

(2) The court shall deal with any application for rectification made prior to the ruling becoming legally enforceable. The decision as to rectification shall to the extent possible be made by the judge who made the ruling. The presiding judge may determine the issue if the court has more than one member, provided that there is no doubt as to how the rectification shall be effected.

(3) A decision as to rectification shall be added to the ruling in such a manner as to show what has been rectified. Section 21-5(1) shall apply correspondingly.

(4) The fact that a ruling has been rectified, or an application for rectification has been made, shall not affect the time limit for appeal.

§ 21-9 Supplementary ruling

(1) If a ruling has not been passed on an issue that should have been ruled on, a supplementary ruling may be passed upon application for such supplementary ruling being submitted within one month. Section 21-8(2), second and third sentence, and paragraph (3), shall apply correspondingly.

(2) The time limit for appeal shall be suspended upon an application for a supplementary ruling being submitted. A new time limit for appeal shall apply if a supplementary ruling is passed. The suspension of the time limit for appeal shall be cancelled if the application is dismissed.

§ 21-10 Reversal

(1) Decisions and interlocutory orders of a procedural nature may be reversed by the court that pronounced them, in so far as concerns as to legislative intent so suggest, and provided that reversal shall not be disproportionately burdensome for a party who has adapted himself to the ruling. Rulings made during the course of the preparation of the case shall not be binding at the main hearing or other court sitting at which the case is being determined.

(2) An interlocutory order passed by an appellate body on issues related to the proceedings of the case before a lower court shall not be binding at a subsequent ruling on the same issue by such appellate body.

(3) A ruling by a senior court may only be reversed to the extent that important new information is available.

(4) The court may reverse of its own accord or upon application by a party. The court shall only process an application for reversal if it finds cause to do so. A ruling not to reverse shall be made in the form of a decision, irrespective of whatever the underlying ruling has been in the form of an interlocutory order.

IV. Enforceability and legal force

§ 21-11 Enforcement

(1) Judicial rulings ordering someone to perform, refrain from or accept an action may be enforced pursuant to the provisions of the Enforcement Act (Act of 26 June 1992 No. 86).

(2) A ruling ordering someone who is not a party to the action to give testimony, make an affirmation, disclose evidence or serve as an expert may not be enforced until such ruling is legally enforceable.

(3) Where recourse is being sought against an enforceable ruling, the court may on application decide that enforcement of such enforceable ruling shall be suspended in full or in part until a final ruling has been made The court may decide that enforcement or suspension of enforcement shall be conditional on the provision of security.

(4) A decision on suspension of enforcement pursuant to paragraph (3) shall be made by the court dealing with the case. The ruling may be reversed by a senior court if the case is brought before such court.

§ 21-12 At what time a ruling shall become legally enforceable

(1) A ruling shall become legally enforceable when recourse may no longer be sought against it by ordinary means of recourse. The timing of legal force shall be assessed separately in respect of each individual claim being processed in the same action.

(2) Where recourse is being sought against a legally enforceable ruling, the court before which such recourse is being sought may on application decide that the legal force shall be temporarily suspended.

§ 21-13 The implications of legal force

(1) A legally enforceable ruling is binding on the parties. Such ruling is also binding on others who would be bound by a corresponding agreement on the subject matter under dispute due to their relationship with the party.

(2) A legally enforceable ruling on a claim shall be recognised without being tried on its merits in any new action in which the court is considering the same claim.

(3) The court shall summarily dismiss any new action being brought between the same parties as to a claim which has been ruled on by unappealable final judgement, unless the claimant due to a dispute as to the binding effect of the ruling or other special circumstances still has a legal interest pursuant to section 1-3.

§ 21-14 The legal force of foreign rulings

(1) Legally enforceable rulings on civil claims in a foreign State passed by its courts or administrative authorities or by way of in-court settlement or arbitration, shall have legal force also in Norway to the extent provided by statute or any agreement with such State.

(2) Legally enforceable rulings on civil claims passed by a foreign court shall have legal force in Norway if its jurisdiction has been agreed pursuant to section 4-5 in respect of a specific legal action or in respect of such legal actions as relate to a specific legal controversy.

(3) Rulings referred to under paragraphs (1) and (2) shall not be recognised if such recognition would be contrary to mandatory laws or be offensive to the legal order.

Chapter 22. Negligence during legal proceedings

§ 22-1 Inadequate procedural steps

(1) The court shall determine a time limit for rectification of any inadequacies pertaining to any procedural steps, and shall provide necessary guidance and details on the consequences of rectification not being carried out.

(2) A party who is very much to blame shall only be allowed to rectify inadequancies if weighty reasons so suggest.

(3) A procedural step that has subsequently been rectified shall be regarded as having been correct as of such time as it was originally taken.

(4) A procedural step that still does not fulfil the necessary conditions for it to be taken shall be summarily dismissed or rejected unless the inadequacy is due to circumstances which ought to be for the risk of the opposite party.

§ 22-2 Omission of procedural steps

(1) Where a procedural step has not been taken in time, and such omission constitutes non-attendance pursuant to sections 22-3 or 22-4, such party may by way of reinstatement pursuant to the provisions of sections 22-8 to 22-10 be permitted to take such procedural step and continue the action in the same position as prior to the omission.

(2) Reinstatement may be applied for prior to the court having passed an interlocutory order on summary dismissal pursuant to section 22-5 or judgement by default pursuant to section 22-6, or by way of recourse against the ruling pursuant to section 22-7. If the court has reason to believe that the omission is based on a valid excuse respecting the failure to take the procedural step in question, such party shall first be given an opportunity to apply for reinstatement.

(3) The court may by way of an interlocutory order disallow the procedural step even if its omission does not constitute non-attendance, if a court sitting would have to be postponed or the case would be significantly delayed. Section 9-10, cf. section 9-16, shall apply to amendments to the case after the preparation of the case has been completed.

§ 22-3 Non-attendance by way of omission and time limit orders

(1) Where a party exceeds the time limit in respect of any of the following, this shall constitute non-attendance in the case:

  • (a)Payment of court fee and necessary ancillary expenses pursuant to the Court Fee Act,

  • (b)Provision of security pursuant to section 23-11,

  • (c)Written reply in a legal action pursuant to section 9-3,

  • (d)Appeal or other forms of recourse, and

  • (e)The initial submission in respect of a written appeal pursuant to sections 11-16(5) and 12-10(4).

(2) If a party has omitted to take any other procedural step which is of material importance to the opposite party or necessary for the sound processing of the case, the court may by issuing an order to such party determine that failure to take such procedural step within a specified final time limit shall constitute non-attendance in the case. If such procedural step is to be taken upon request from the opposite party, such order shall only be issued on application from such party.

(3) If the obligation to take such procedural step is contested, a time limit order shall not be issued until such obligation has been determined in a binding manner.

(4) The time limit order shall be served on the party subjected to the time limit, and shall in addition be notified to a party represented by counsel.

§ 22-4 Non-attendance by way of absence

(1) Where a party is absent from any of the following, this shall constitute non-attendance in the case:

  • (a)Court sittings for the conclusion of the consideration of the case, and

  • (b)A court sitting for oral reply pursuant to section 9-5(1).

(2) The court may in respect of other court sittings, provided that it is particularly important that certain parties attend, decide that their absence would constitute non-attendance in the case.

(3) The absence of a person who has been ordered to attend in person shall constitute non-attendance irrespective of the attendance of his counsel.

(4) Paragraphs (1) to (3) shall apply correspondingly if a party:

  • (a)Abandons the sitting without permission of the court,

  • (b)Refuses to engage in the subject matter of the sitting,

  • (c)Is banned from addressing the court or expelled pursuant to section 133 of the Courts of Justice Act, or

  • (d)Attends without counsel in contravention of an order pursuant to section 3-2.

§ 22-5 Summary dismissal in case of non-attendance

(1) The case shall be summarily dismissed if the claimant does not attend and the court does not grant reinstatement. If such outcome is due to any other reason for non-attendance than those pursuant to section 22-3(1)(a) or (b), no new action may be brought in respect of the claim either.

(2) Summary dismissal based on any other reason for non-attendance than those pursuant to section 22-3(1)(d) shall require that the claimant has been made aware of the consequences of non-attendance.

(3)(1) and (2) shall apply correspondingly in case of the non-attendance of the appellant or whoever else has applied for the procedural step in question.

§ 22-6 Judgement by default

(1) The case shall be ruled on by way of judgement by default provided that the respondent does not attend and the court does not grant reinstatement. Judgement by default may not be passed in cases where public interest considerations imply that the right of disposition of the respondent in the legal controversy is limited, cf. section 5-3.

(2) Judgement by default shall be passed upon application from the claimant, provided that the court shall find in favour of the claimant in full or in the main. The judgement shall be based on the grounds for the claimant’s prayer for relief pursuant to section 5-2, provided that these have been notified to the respondent and do not appear to be clearly incorrect. Section 22-5(2) shall apply correspondingly to the respondent.

(3) Rulings summarily dismissing or dismissing an application for judgement by default shall be made by way of interlocutory order.

(4) This section shall apply correspondingly in case of the non-attendance of the respondent on appeal or whomever else the claim is directed against.

§ 22-7 Recourse against rulings pursuant to sections 22-5 and 22-6

(1) Recourse against an interlocutory order granting summary dismissal or a judgement by default may be sought by way of an application for reinstatement.

(2) If the court has at the same time dismissed an application for reinstatement, the ruling may instead be appealed with a prayer for reinstatement pursuant to section 22-8. The appeal shall be dealt with pursuant to the provisions concerning appeals against interlocutory orders.

(3) A separate appeal may be brought against the cost award pursuant to section 23-9(3).

§ 22-8 The conditions for reinstatement

(1) Reinstatement shall be granted to a party who had a valid excuse for non-attendance pursuant to paragraph (2), provided that he is not to blame for not in time having sought an extension of the time limit or a rescheduling of the court sitting. If the case has been ruled on pursuant to sections 22-5 or 22-6, reinstatement shall also be granted if such ruling should not have been made.

(2) Non-attendance by way of omission shall constitute a valid excuse if obstacles outside the control of the party make it impossible or disproportionately burdensome to take the procedural step in time. Section 17-4 shall apply to non-attendance by way of absence as a valid excuse.

(3) In other cases, reinstatement may be granted if it would be unreasonable to refuse the party the right to have the case dealt with on the basis of the negligence shown. In ruling on whether to grant such reinstatement particular weight shall be attached to the character of the negligence shown, the interest of the party in taking the procedural step and the needs of the opposite party.

§ 22-9 The time limit for applying for reinstatement

(1) The time limit for applying for reinstatement shall be one month.

(2) If the case has been ruled on pursuant to sections 22-5 or 22-6, the time limit shall run from the time of service. Reinstatement may be granted where such time limit is exceeded.

(3) The time limit shall be based on the time of the negligence having been shown, provided that the case has not been concluded. In such case reinstatement shall not be granted in respect of such time limit being exceeded.

§ 22-10 The processing of the application for reinstatement

(1) An application for reinstatement shall be determined by the court which would deal with the case if such application were to succeed. Grounds shall be given for the application, and it shall otherwise be dealt with pursuant to the provisions concerning appeals against interlocutory orders to the extent that these are appropriate. At the same time, the neglected procedural step shall be taken, if possible.

(2) An appeal may only be brought against an interlocutory order granting reinstatement on the basis of error in the application of law or procedure.

Chapter 23. Costs

§ 23-1 Scope

(1) This Chapter addresses the claims of the parties for compensation for costs related to lawsuits.

(2) The provisions relating to parties shall apply correspondingly to interveners. Interveners as referred to in section 15-8(1)(b) may nevertheless only be awarded costs if special reasons so suggest.

(3) Compensation pursuant to this Chapter may only be claimed when determined or agreed.

(4) The Court Fee Act shall apply to the duty of the parties to pay fees to the state for procedural steps.

§ 23-2 Costs awarded to the successful party

(1) A party having succeeded in the action shall be entitled to full compensation for his costs from the opposite party.

(2) The action has been successful if the court found in favour of the party on all or most counts, or if the action of the opposite party has been summarily dismissed or quashed due to having been waived or due to the courts not having jurisdiction. The overall outcome shall be decisive if the action relates to several claims between the same parties.

(3) The opposite party may in full or in part be exempted from the liability for costs if deemed reasonable on weighty grounds. Special weight shall be attached to

  • (a)whether there was justifiable cause for having the case tried due to the outcome being uncertain or due to the evidence having been clarified only after the action was brought, and

  • (b)whether the successful party is to blame for the action having been brought and whether he has rejected a reasonable settlement offer.

§ 23-3 Costs awarded to a party having had a significant degree of success

A party who without having won the case pursuant to section 23-2 has been successful to a significant degree may be awarded costs from the opposite party in full or in part, if weighty reasons so suggest. In addition to the factors mentioned in section 23-2(3), second sentence, special weight shall be attached to the degree to which the court has found in favour of the party and what proportion of the costs relates to such part of the case.

§ 23-4 Costs irrespective of outcome

A party may be awarded costs in full or in part irrespective of the outcome of the case, if

  • (a)the action has been brought for no good reason, and the party accepts the claim at the earliest opportunity,

  • (b)the action has been quashed due to circumstances outside the control of the party, and there is no doubt that the party would otherwise have succeeded, or

  • (c)the costs have arisen due to the negligence of the opposite party.

§ 23-5 Assessment of compensation in respect of costs

(1) Full compensation for costs shall cover all necessary costs incurred by the party in relation to the action, provided that there are no special provisions giving cause to exclude such costs. In assessing whether costs have been necessary, weight shall be attached to whether it was reasonable to incur them in view of the importance of the case. The party may claim reasonable compensation for his own efforts in dealing with the case, provided that such efforts have been particularly extensive or would otherwise have had to be undertaken by counsel or other qualified assistant.

(2) Section 8-13 shall apply to actions before the Conciliation Board and section 10-5 shall apply to actions processed pursuant to the provisions concerning small claims procedure.

(3) In cases being ruled on following oral proceedings a party claiming costs shall submit a specification of the claim which shall provide the details required for the court to assess such costs. The specification shall be submitted at the conclusion of the court sitting in respect of the items known at such time, and in respect of the remaining items within such time-limit as the court shall determine. The court may in cases being determined on the basis of written proceedings require that such specification of costs be submitted, and if it so requests it shall also determine a time limit within which such submission shall take place.

(4) The court shall not assess items in the specification which have been approved by the opposite party. The parties shall be given an opportunity to comment if the court is contemplating a reduction of the claim without any objection having been raised by the opposite party.

(5) A party who fails to submit a compulsory specification of costs by such time as the case is being ruled on shall not be awarded costs.

§ 23-6 Actions having more than one party on the same side

(1) If there is more than one party on the same side, rights and obligations as to costs in relation to the opposite party shall be assessed separately for each such party.

(2) If more than one party is ordered to be liable for costs, the court may determine that they shall be jointly and severally liable in respect of all or parts of the amount in question. Amongst the factors to which weight should be attached are how closely related to each other the various processed claims are as well as the prospects of the opposite party of obtaining settlement. If requested the court shall allocate liability internally between parties who are jointly and severally liable.

§ 23-7 The liability of the representatives of the parties respecting costs

(1) The liability for costs shall lie with the party. If an action brought by an entity is summarily dismissed on the basis of its incapacity to be a party to such action, liability shall lie with whoever has been designated as the legal representative of the entity.

(2) A claim for compensation for costs against others than the opposite party, pursuant to provisions not included in this Chapter, may be included in the action by way of joinder. Section 15-2(3) and (4) shall apply if the claim is brought before the Municipal Court. Joinder may be refused if the claim is being brought before the appellate court, if it could be more appropriately processed by way of a separate action or if joinder would lead to the case being significantly delayed.

§ 23-8 General provisions on cost awards

(1) Claims for costs shall be determined in respect of each court in the ruling that concludes the processing of the case before such court.

(2) Costs relating to rulings on other issues than the claim which constitutes the subject matter under dispute shall be included in the costs to be determined pursuant to paragraph (1). Where a separate appeal is brought against the rulings on such other issues, costs relating to dealing with such other issues before all courts shall be determined separately by the appellate court.

(3) If the determination of costs is contingent upon the outcome of parts of the action which have as yet not been resolved, the making of the cost award shall be postponed until the time of such resolution.

§ 23-9 Review of cost awards

(1) An appellate court may review the cost awards made by the lower courts in the action under appeal. Any limitations on the jurisdiction of the appellate court shall also apply to such review.

(2) The appellate court shall base its determination of claims for costs relating to lower courts on the outcome of its own ruling in the case.

(3) The cost award may be appealed separately pursuant to the provisions concerning appeals against interlocutory orders, provided that such award is not being reviewed pursuant to paragraph (1). The appellate court shall only review the application of law and the procedure of the case, as well as the assessment of evidence to the extent that it exclusively relates to the cost award. The Court of Appeal may make a new ruling on the costs of the case, in so far as it has a sufficient basis for so doing.

§ 23-10 The preferential right of counsel in respect of awarded costs

Counsel shall in relation to the other creditors of his party have a right of preference in respect of costs awarded to such party as far as the amount due to him is concerned. Counsel may require that the amount of the costs be paid directly to him.

§ 23-11 Provision of security in respect of liability for costs

(1) The respondent may demand that a claimant not having his habitual residence in Norway provide security is respect of potential liability for costs before the relevant court. Provision of security shall not be required if it would contravene an obligation under international law relating to equal treatment of parties resident abroad and parties resident in Norway, or if it would seem unreasonable from the point of view of the nature of the case, the relationship between the parties and other circumstances.

(2) The provision of security pursuant to paragraph (1) may not be demanded by the respondent in respect of a claim asserted pursuant to section 15-1(2), in respect of a derivative appeal pursuant to section 11-7, or in cases where public interest considerations imply that the right of disposition of the parties is limited.

(3) A demand for the provision of security shall be submitted to each court concerning the proceedings before which security is being demanded, within the first time limit provided for the party to comment on the merits of the case, or, if a written reply is not being requested, at the first court sitting to which the parties have been summoned.

(4) The court shall determine the amount in respect of which security shall be provided. Section 3-6, first paragraph, of the Enforcement Act shall apply correspondingly regarding what may be accepted as security. The case shall be summarily dismissed if security has not been provided within the time limit prescribed, cf. section 22-5(1). If security has been provided in time, such security shall be released if there is no longer any basis for maintaining it.

(5) Ruling on a demand for the provision of security or the release of security shall take place by way of an interlocutory order. An appeal against an interlocutory order ordering the provision of security or the release of security shall have suspensive effect.

Minority proposal:

§ 23-11 A Provision of security as a condition for bringing an appeal against a judgement

(1) The Court of Appeal may on application from the respondent order the appellant to provide security in respect of potential liability for costs related to the case. The provision of security may only be ordered if the Court of Appeal finds it obvious that the appeal will not succeed and that it must be assumed that the appellant will be made liable for costs relating to the case.

(2) The Court of Appeal shall determine the amount of the security.

(3) Section 3-6, first paragraph, of the Enforcement Act shall apply correspondingly regarding what may be accepted as security. The amount may instead be deposited with the court.

(4) An application for the provision of security shall be submitted no later than in the reply. A judge who has ordered the provision of security shall not participate in the further processing of the case. Section 23-11(4), third and fourth sentences, shall apply correspondingly.

§ 23-12 The liability of the State respecting the costs of the parties

(1) A party who has incurred costs as a result of an error on the part of the court in dealing with the case may demand that it be indemnified by the State in respect of its loss, if the error

  • (a)is such that it shall be accorded unconditional effect pursuant to section 11-21(2)(b) or (c), or (d) due to the party not having been lawfully summoned, or

  • (b)is caused by clearly unsound conduct on the part of the court.

(2) If the costs of the party are incurred through the error having impacted on a ruling in the case, the conditions pursuant to section 200, third paragraph, of the Courts of Justice Act must also be fulfilled.

(3) A claim for compensation pursuant to paragraph (1) shall be submitted within three months of the case having been ruled on by unappealable final judgement. If a judgement has been passed in a criminal case pursuant to section 200, third paragraph, item (d), of the Courts of Justice Act, the time limit shall be calculated from the date on which the judgement becomes legally enforceable. An application for reinstatement pursuant to Chapter 22 may be made if the time limit is exceeded. The opposite party shall be the State, as represented by the Courts of Justice Administration.

(4) The claim shall be brought before the court which is dealing with the case or which passed the final ruling in the case. If such court is the Supreme Court it may be left to the Appeals Committee of the Supreme Court to rule on the matter. The Supreme Court or the Appeals Committee may determine that the claim for compensation shall instead be ruled on by the Court of Appeal, in cases where such claim relates to an error made by the Municipal Court.

(5) The provisions concerning appeals against interlocutory orders shall apply accordingly to the processing of the claim as far as they are appropriate. If the claim is being asserted while the case is pending, such claim may be included in such case by way of joinder.

Part VI - Evidence Chapter 24. General provisions on evidence

§ 24-1 The scope of the provisions on evidence

The provisions on evidence are concerned with the factual basis for ruling on the case.

§ 24-2 The evaluation of evidence

(1) The court shall establish the facts upon which the case shall be determined on the basis of a free evaluation of evidence.

(2) The evaluation of evidence shall be based on facts that comes to light in that which shall form the basis for the ruling. The evidence being presented shall apply to all parties to the case and to all cases consolidated for joint processing.

(3) In its evaluation of evidence, the court may, irrespective of whether they have been addressed during the proceedings, include factual circumstances acknowledged by a party, known facts as well as the general and specialist knowledge and experience possessed by the court. Section 5-1(3) shall apply to the extent that such knowledge may be uncertain or in dispute.

§ 24-3 Entitlement and obligation to present evidence

(1) The parties shall be entitled to present such evidence as they wish. The entitlement to present evidence shall nevertheless be curtailed by evidence prohibitions and evidence exemptions pursuant to Chapter 25 and other statutory provisions on evidence.

(2) In cases where public interest considerations imply restrictions on the right of disposition of the parties, cf. section 5-3, the court shall ensure that the presentation of evidence provides a sound factual basis for the ruling. The court may in respect of other cases arrange for presentation of evidence unless opposed by the parties.

§ 24-4 The obligations of the parties as to truthfulness and disclosure

(1) The parties shall ensure that the factual basis of the case is correct and complete. They shall provide such explanations and summaries of evidence as are required to fulfil this obligation, and they have a duty to give testimony and access to evidence pursuant to section 24-5.

(2) A party shall also disclose the existence of important evidence of which such party has reason to believe that the opposite party is not aware. This shall apply irrespective of whether such evidence is in favour of such party itself or in favour of the opposite party.

§ 24-5 General obligations to act as a witness and to provide access to evidence

All persons are under an obligation to testify on factual circumstances and to give access to objects etc. which may constitute evidence in a lawsuit, subject to the limitations referred to in chapter 25 and other sections in the act.

§ 24-6 Summary of evidence

(1) The parties shall in a summary of evidence inform the court as to which evidence they wish to present.

(2) The party shall specify what the evidence is intended to establish, and shall briefly explain important information which will be provided by way of the evidence to the extent that such party cannot expect the opposite party to be aware of it.

§ 24-7 General restrictions on the entitlement to present evidence

(1) The parties may only present evidence on factual circumstances which may be of importance to the ruling to be made.

(2) The court may refuse presentation of evidence which

  • (a)has not been clarified pursuant to section 24-6(2),

  • (b)is not likely to appreciably improve the basis for the ruling, or

  • (c)the court finds it necessary that be presented in a different manner.

§ 24-8 Restrictions based on proportionality

(1) There shall be a reasonable degree of proportionality between the importance of the dispute and the scale and scope of the presentation of evidence. If the presentation of evidence as announced goes beyond the limitations imposed by this requirement, the court may curtail such presentation of evidence to achieve the legislative intent pursuant to section 1-1, and within the confines of the restrictions resulting from such purpose.

(2) If the presentation of evidence may be curtailed in different ways, the party shall choose between these.

§ 24-9 The presentation of evidence in cases involving oral proceedings

In cases involving oral proceedings the evidence shall be presented directly to the adjudicating court, subject to the exceptions provided by sections 24-10 to 24-12 and other provisions on evidence. Section 12-11(1) shall apply to the presentation of evidence in cases involving oral proceedings before the Supreme Court.

§ 24-10 Long-distance examination

(1) Parties, witnesses and experts may be examined before the adjudicating court by way of long-distance examination provided that direct examination is not practicable, or would be particularly burdensome or expensive. Long-distance examination should not take place if the testimony may be of special importance, or if other considerations give reason for concern. Long-distance examination may always take place if the expenses or disadvantages of a direct statement before the adjudicating court are considerable relative to the importance of the dispute to the parties. Experts who have provided a written submission to the court may always be examined by way of long-distance examination unless special circumstances give reason for concern.

(2) Long-distance examination shall take place in the form of examination by video. If equipment for examination by video is not available, examination by audio may be utilised provided that the conditions pursuant to paragraph (1) will be fulfilled also in respect of such method. The court shall determine where the examination is to take place. More detailed provisions on long-distance examination may be prescribed by way of regulations.

§ 24-11 Taking of evidence

(1) Judicial examination of parties, witnesses and experts and assessment of real evidence for purposes of ruling on cases involving oral proceedings may be effected by taking of evidence pursuant to the provisions of Chapter 30, provided that

  • (a)it must be assumed that such evidence will be more reliable than it would be if presented directly before the adjudicating court, and that it will not result in disproportionate additional expenses,

  • (b)there is a clear risk that it will not be possible to present such evidence directly before the adjudicating court, or

  • (c)direct presentation of such evidence before the adjudicating court will result in expenses and disadvantages which are disproportionate to the importance of the evidence or the case.

(2) Evidence taken pursuant to paragraph (1) may be presented in the oral proceedings, provided that the parties have had the opportunity to attend to their interests, or provided that the conditions pursuant to section 24-12 have been fulfilled. Evidence that has otherwise been taken or secured in the same case may be presented, provided that none of the parties have requested that such evidence be presented directly before the adjudicating court, or provided that the conditions pursuant to section 24-12 have been fulfilled.

§ 24-12 Written statements as evidence

(1) Written declarations made for the purpose of the case by an expert pursuant to section 28-5 may be presented as evidence.

(2) Written statements made in respect of the case by others may be presented as evidence, provided that the parties agree to such presentation or they have the opportunity to examine whoever has made the statement, and further provided that it does not give cause for concern on account of the clarification of the case to make use of such written statement. The evidence shall not be presented until it is confirmed that the person who made it will attend. If it is impossible to examine the person who made the statement, it may be presented as evidence unless it would be contrary to the legislative intent pursuant to section 1-1.

§ 24-13 The presentation of evidence in cases based on written proceedings

(1) Evidence shall in cases based on written proceedings be presented by way of documentation pursuant to section 29-2.

(2) Examination of parties, witnesses and experts and assessment of real evidence for the purpose of ruling on the case may be effected by taking of evidence, provided that such evidence cannot be presented before the adjudicating court. Written statements may be utilised pursuant to the provisions of section 24-12.

Chapter 25. Evidence prohibitions and evidence exemptions

§ 25-1 Prohibition on presenting evidence of importance to national security or relations with a foreign State

(1) Evidence shall not be presented in respect of anything which is being kept secret on account of national security or relations with a foreign State.

(2) The King may consent to the presentation of such evidence. The court shall impose a duty of confidentiality, unless otherwise provided by such consent. Oral proceedings relating to such evidence shall in such case take place in camera.

§ 25-2 Prohibition on presenting evidence as to discussions held in meetings of the Government

Evidence shall not be presented of discussions held in meetings of the Government.

§ 25-3 Prohibition on presenting evidence subject to a statutory duty of confidentiality

(1) Evidence shall not be presented if such presentation cannot take place without the person being in possession of such evidence breaching a statutory duty of confidentiality imposed on him as a consequence of work for the State, for a municipality, or for a supplier of postal services, of telecommunications services or of access to a telecommunications network.

(2) The Ministry may consent to the presentation of such evidence. Consent may only be refused if the revelation of such information may be detrimental to the State or public interests or have unfair consequences for the person who is entitled to preservation of secrecy.

(3) After giving due consideration to the duty of confidentiality, on the one hand, and to the need for clarification of the case, on the other, the court may by way of an interlocutory order determine that the evidence shall be presented despite consent having been withheld, or that evidence shall not be presented even though the Ministry has consented. The court shall prior to ruling on such matter provide the Ministry with an opportunity to explain the reasons for its position on the matter. Such explanation shall be communicated to the parties.

(4) The court shall impose a duty of confidentiality if evidence as referred to in paragraph (1) is being presented by consent, unless otherwise provided by such consent. Oral proceedings relating to such evidence shall in such case take place in camera. The same shall apply if the court pursuant to paragraph (3) determines that such evidence shall be presented despite consent having been withheld.

§ 25-4 Prohibition on presenting evidence as to legal proceedings and judicial rulings etc.

(1) Evidence shall not be presented as to the contents of proceedings or statements in regard to which those present are subject to a duty of confidentiality imposed by a court pursuant to statute.

(2) The person entitled to the preservation of secrecy may consent to the presentation of such evidence. The court shall impose a duty of confidentiality, unless otherwise provided. Oral proceedings relating to such evidence shall in such case take place in camera.

(3) Evidence shall not be presented if it includes information from judges or members of a jury as to the basis for rulings they have made or verdicts they have delivered.

(4) Sections 6-7(1) and 7-6 shall apply to evidence relating to anything which emerged during the course of non-judicial mediation or judicial mediation.

§ 25-5 Prohibition on and exemption from presenting evidence as to confidences imparted in those involved in certain occupations

(1) Evidence shall not be presented as to confidences imparted in clergymen in the state church, priests or pastors in registered religious communities, advocates, defence counsel in criminal cases, conciliators in matrimonial cases, medical practitioners, psychologists, chemists, midwives or nurses in their official capacity.

(2) The person entitled to the preservation of secrecy pursuant to paragraph (1) may consent to the presentation of such evidence. The court shall impose a duty of confidentiality, unless otherwise provided by such consent. Oral proceedings relating to such evidence shall in such case take place in camera.

(3) The court may exempt a party or a witness from providing access to evidence concerning anything that has been confided to him in the course of spiritual guidance, social welfare work, medical treatment, legal aid pursuant to section 218, second paragraph, of the Courts of Justice Act, or any similar activity, irrespective of whether the matter falls within the scope of paragraph (1). (2) third sentence shall apply correspondingly.

§ 25-6 Prohibition on presenting evidence as to character and credibility

(1) Evidence shall not be presented as to the character, sexual conduct or general credibility of a party or a witness. The court may nevertheless permit the presentation of evidence which is of material importance to the ruling, and shall in such case determine the manner in and extent to which the presentation of such evidence shall take place.

(2) Any questions as to whether the party or witness has previously been convicted shall, as a general rule, be put and answered in writing. The same procedure may be used in relation to other questions concerning the person or private life of the party or witness.

(3) Written statements concerning the good or bad name and reputation of a party or witness are inadmissible.

(4) Evidence shall not be presented as to the credibility of a party or a witness to the extent that such evidence is based on the testing of physiological reactions.

§ 25-7 Prohibition on evidence obtained in an improper manner

The court may in special circumstances refuse evidence that has been obtained in an improper manner, provided that presentation of such evidence would imply a violation of weighty concerns as to the protection of privacy and due process.

§ 25-8 Exemption for certain relatives and others from presenting evidence relating to information provided to them by the party

(1) The current or former spouse or cohabitant, relatives in a direct line of ascent or descent and siblings of the party may refuse to provide access to evidence relating to information provided to them by such party.

(2) The court may exempt the fiancé(e), foster parents, foster children or foster siblings of the party from the obligation to give evidence as to matters referred to in paragraph (1).

(3) The court shall impose a duty of confidentiality if a statement is made by consent, unless otherwise provided by such consent. Oral proceedings relating to such evidence shall take place in camera. The court may determine that the same shall apply if an exemption has not been granted in respect of statements referred to in paragraph (2).

§ 25-9 Exemption from presenting evidence as to incriminating personal details

(1) A party or witness may refuse to provide access to evidence which may result in any penalty or considerable loss of civil esteem on the part of himself or

  • (a)any relative as mentioned in section 25-8(1) or their spouses or cohabitants,

  • (b)a current or former spouse or cohabitant or their relatives in a direct line of ascent or descent or their siblings, or

  • (c)any person married to or cohabiting with any person included in item (b).

(2) The court shall exempt a party or witness from providing access to evidence in the event of any risk of a considerable material loss of any other kind on the part of himself or his relatives or others referred to in paragraph (1), if on consideration of the nature of the case, the significance of the statement to the clarification of the case, and other circumstances, it would be unreasonable to order the party or witness to provide access to such evidence.

(3) The court may grant exemptions from the obligation of a person to provide access to evidence relating to his fiancé(e), foster parents, foster children or foster siblings in the manner referred to in paragraphs (1) and (2).

(4) Section 25-8(3) shall apply correspondingly.

§ 25-10 Exemption from presenting evidence as to trade or business secrets

(1) A party or witness may refuse to provide access to evidence which cannot be made available without revealing trade or business secrets. The court may nevertheless order that such evidence be made available, if, after balancing the relevant interests, the court finds this to be required.

(2) A party or witness providing information pursuant to paragraph (1), may demand that such information shall be provided under imposition of a duty of confidentiality, and that oral proceedings relating to such evidence shall take place in camera.

§ 25-11 Exemption for the mass media from presenting evidence – protection of sources

(1) The editor of a printed publication may refuse to provide access to evidence concerning who is the author of an article or report in the publication or the source of any information contained in it. The same shall apply to evidence concerning who is the source of other information that has been confided to the editor for use in his work. Other persons who have acquired knowledge of the author or the source through their work for the publishers, editors, press agency or printers in question have the same right as the editor.

(2) The court may nevertheless on the basis of an overall assessment order evidence referred to in paragraph (1) to be presented, including the revelation of a name as referred to in the said paragraph, in so far as weighty public interest considerations require that such information be made available, and provided that it is of considerable importance to the clarification of the case. The court may in such case determine that the information shall be provided under imposition of a duty of confidentiality, and, in case of oral proceedings, in camera. If the author or source has revealed circumstances the publication of which were a matter of considerable public concern, such order may only be imposed if it is found to be particularly important that the name be made known.

(3) Paragraphs (1) and (2) shall apply correspondingly to any contributor to any broadcast media or other media undertaking which in the main has the same purpose as newspapers and broadcast media.

Chapter 26. The obligations of the parties to attend and to make statements

§ 26-1 The obligation of the parties to attend

(1) A party not having a valid excuse for non-attendance shall be under obligation to attend in person any court sitting to which such party has been summoned pursuant to the more detailed provisions of sections 17-2 and 17-4(1). An obligation to attend in person shall be imposed following application from the opposite party, or where the court deems it necessary that the party attends. The court may on application from a party exempt him from attending, if the conditions for long-distance examination are fulfilled, or if the court finds that there are inadequate grounds for requiring the party to attend.

(2) The party shall be under obligation to remain in attendance throughout the court sitting, unless he is exempted by the court. The court may determine that a party who has been exempted from attending shall ensure that he is contactable for the duration of the court sitting.

(3) Section 27-2 shall apply correspondingly to a summoned party who is deprived of his liberty and committed to an institution.

(4) The court may in cases where it pursuant to section 24-3(2) has a duty to ensure a sound factual basis for the ruling determine that a party who fails to attend without a valid excuse for non-attendance, or who attends in an intoxicated state, shall be apprehended or detained in custody pursuant to section 27-5.

§ 26-2 Examination of parties

(1) A party shall be under obligation to testify in person in his capacity as a party, if required by another party or by the court. Such testimony shall be made directly before the court if such party is present at the court sitting. Otherwise such testimony shall be made by way of long-distance examination pursuant to section 24-10 or by way of taking of evidence pursuant to section 24-11.

(2) A party shall first be examined by his counsel, then by other parties, and thereafter by the court. A party not represented by counsel shall first be examined by the court. The court may alter the sequence if deemed to be expedient. In addition, the provisions of sections 27-4, 27-7, 27-8, 27-9(2) to (5), 27-10 and 27-11 as to examination of witnesses shall apply correspondingly to examination of parties.

(3) The provisions concerning witnesses shall apply to the extent that parties give testimony concerning claims in respect of which they are not parties.

Chapter 27. Testimonial evidence

§ 27-1 Obligation to give evidence

(1) Anyone who has information of relevance to the factual basis for the ruling on the case shall be under an obligation to give evidence at a court sitting following a subpoena pursuant to section 17-3.

(2) The obligation to give evidence shall apply to persons who are resident or staying in Norway, and who do not have a valid excuse for non-attendance pursuant to section 17-4(1). The Act of 21 March 1975 relating to Nordic obligations to give evidence shall apply to persons who are resident or staying in the other Nordic countries. Sections 27-10 and 27-11 shall determine the obligation of children and persons with psychiatric disorders or learning difficulties to give evidence.

(3) The issue of whether the witness shall be subpoenaed to give evidence directly before the adjudicating court, or whether the evidence shall be given by way of long-distance examination or the taking of evidence, shall be determined pursuant to the provisions of sections 24-10 and 24-11.

§ 27-2 Obligation to attend for witnesses deprived of their liberty

If the witness has been deprived of his liberty by way of being committed to an institution, such institution shall have a duty, upon being informed of the subpoena, to ensure that the witness to the extent possible may give evidence. The court shall be notified immediately if the evidence will have to be given in a different manner from that assumed in the subpoena.

§ 27-3 Obligation to attend for witnesses in case of evidence prohibitions and evidence exemptions

(1) A witness who shall only testify on issues which according to the information made available can only be provided by consent or order of the court, should as a general rule not be subpoenaed as long as consent has not been given, or if there is no reason to believe that the witness may be ordered to testify.

(2) If a witness is subpoenaed who is entitled to refuse to give evidence on the issues which are to be covered by the examination, the subpoena may include a notice that attendance is unnecessary if such witness is determined to refuse to give evidence. If the witness sufficiently far in advance of the court sitting notifies the court that he will refuse to give evidence, the subpoena shall be recalled if such refusal is found to be justified.

§ 27-4 Obligation to prepare for the statement and to bring evidence

(1) The court may order a witness to bring with him documents or other evidence which the said witness is under an obligation to produce.

(2) The witness is on request obliged to refresh his knowledge of the case to the extent necessary, amongst other things by inspecting or studying evidence to which he has access, such as accounts, minutes of meetings etc., and if necessary to prepare notes and bring objects to the court.

§ 27-5 Witnesses who fail to attend or who attend in an intoxicated state

The court may determine that a witness who fails to attend without a valid excuse for non-attendance shall be brought before the same or a subsequent sitting, and that a witness who attends in an intoxicated state shall be detained in custody until he is sober.

§ 27-6 Individual examination - the right to attend the proceedings

(1) The witnesses shall be examined individually, and shall not attend the proceedings until they have been examined unless both parties agree and the court finds it unproblematic. Witnesses may be confronted with each other if their testimony provide cause for doing so.

(2) A witness having assisted the party extensively in respect of the subject matter of the case shall normally upon application from the party be permitted to attend the proceedings throughout. Section 28-6(2) shall apply to expert witnesses.

§ 27-7 Order to leave the courtroom during statements from witnesses

The court may by way of exception determine that a party or other person shall leave the courtroom while a witness is being examined, if there is special reason to fear that the witness would otherwise not give an unreservedtestimony. The court shall ensure that questions the party may have for the witness are being asked. Subsequent to the examination the court shall make an excluded party aware of thetestimony given.

§ 27-8 Introduction to the examination of witnesses

(1) The court shall ask the witness his name, date of birth, occupation, place of habitual residence and relationship to the parties. Instead of his place of habitual residence, the witness may state his place of work. The court may if necessary order the witness to state his place of habitual residence to the court. The witness shall also be asked about other circumstances that may affect the assessment of hisevidence, if the court finds cause to do so.

(2) If the court assumes that there will, be limitations on the obligation of the witness to give evidence in the case pursuant to the provisions on evidence prohibitions or evidence exemptions, the court shall draw his attention to this point. If a witness asserts that he is not entitled or bound to provide a statement, he must adduce a probable reason. In the absence of other evidence it is sufficient that the witness substantiates this by way of an affirmation.

(3) The court shall prior to the evidence being given admonish the witness to make a statement which is truthful and complete, and inform the witnesses of the liability consequent on making a false statement or affirmation. The court shall thereafter ask the witness: «Do you affirm that you will tell the plain and whole truth and not conceal anything?» To this question the witness shall reply standing: «I do so affirm upon my honour and conscience».

§ 27-9 Effecting the examination of witnesses

(1) The witness shall first be examined by the party having subpoenaed him, then by other parties and thereafter by the court. The court shall start the examination of witnesses which it has subpoenaed of its own accord, but may leave this to the parties. The court shall examine witnesses for a party, if so requested by such party.

(2) The witness shall give oral testimony. The witness should normally provide a continuous statement as to all or specific parts of the facts of the case, prior to more detailed questions being asked.

(3) Notes may be utilised as memory aids. The witness shall state when, by whom and for what purpose the note has been prepared. In his evidence, the witness may refer to a written statement having been submitted pursuant to section 24-12, but shall in addition answer questions from the parties and the court.

(4) The court shall ensure that the examination takes place in a manner which is conducive to bringing out a clear and truthful statement, and which is considerate towards the witness. Questions which in their content or form encourage answers in a specific direction shall not be asked, unless it is being done to test the reliability of information which the witness has provided previously, or other special reasons make it justifiable. Questions which are not pertinent to the case shall be rejected.

(5) The court shall take over the examination if it is being conducted in an unsatisfactory manner or other reasons so suggest.

§ 27-10 Child as witnesses

(1) If a request is made to examine a child under 12 years of age as a witness, the court shall determine whether examination shall take place after balancing concern for the child with the need for clarification of the case. The child shall only be subpoenaed if there is reason to believe that it may be examined.

(2) The court shall, if the witness is a child under 16 years of age, determine how the examination shall be effected in view of concern for the interests of the child and the need for proper clarification of the case. An affirmation shall not be made.

(3) The guardian of the child or another person responsible for the child should be allowed to be present at the examination unless there are special reasons to the contrary.

§ 27-11 Persons with severe psychiatric disorders or learning difficulties as witnesses

Section 27-10(1) to (3) shall apply correspondingly to the examination of a witness with a severe psychiatric disorder or considerable learning difficulties.

Chapter 28. Testimonial evidence from experts

§ 28-1 Testimonial evidence from experts

Expert evidence is an expert assessment of factual circumstances in the case.

§ 28-2 The conditions for appointing an expert

(1) The court may appoint an expert on application from a party or of its own accord pursuant to section 24-3(2), where such appointment is required for establishing a sound factual basis for ruling on the case.

(2) If for a party the case may have consequences beyond the specific ruling, and the party for such reason will present expert witnesses, the court may appoint experts if required to ensure balance between the parties as to the presentation of evidence.

§ 28-3 The number of experts. The selection of an expert. Expert panels

(1) One expert shall be appointed. More than one expert may be appointed if suggested by the nature of the issues to be assessed by experts, the importance of the case or other circumstances, provided that it shall not lead to undue expenses or delays. The court may appoint additional experts to supplement those previously appointed.

(2) Persons appointed as experts shall have the required skills and experience. If permanent panels of experts have been established, the experts shall be selected from such panels, unless the court deems it desirable to appoint an expert from outside such panels. An expert the appointment of whom has been requested by both parties and who is willing to serve as an expert, shall be appointed unless special concerns suggest otherwise.

(3) A person who would have been incompetent as a judge in the case shall not be appointed an expert. In general, the appointment of experts whose connections to the parties, to other experts or to other circumstances imply that doubts may be raised as to their independence or impartiality, should be avoided. A person having served as an expert before a lower court shall not prevent him being appointed an expert.

(4) The Courts of Justice Administration may establish panels of experts for specific types of cases as well as panels for assessing reports by experts within specific areas of expertise.

§ 28-4 Terms of reference. Instructions

The court shall determine what the expert is to report on, and shall provide the required instructions. The court may order the parties to prepare draft terms of reference for the experts.

§ 28-5 The report of the expert. Oral statement

(1) The expert shall submit a written report, unless the court has determined otherwise. Several experts may submit a joint report. The court may determine that the expert shall submit a supplementary report.

(2) The expert shall be obliged to attend a court sitting for purposes of giving evidence pursuant to a subpoena from the court pursuant to section 17-3(4). The expert shall be subpoenaed if required on account of the execution of his assignment or the clarification of the case. The court shall as a general rule comply with a request from a party for such subpoena. Whether the expert shall be subpoenaed to give evidence directly before the adjudicating court, or whether such evidence shall be given by way of long-distance examination, shall be determined pursuant to the provisions of sections 24-10 and 24-11.

(3) The experts may attend the proceedings and consult other experts, and shall be permitted to present questions to parties, witnesses and other experts to the extent required to execute his expert assignment.

(4) Prior to the expert giving evidence to the court, he shall confirm by way of affirmation upon his honour and conscience that the expert assignment has been performed and will be performed conscientiously and to the best of his convictions. The examination shall in other respects take place pursuant to the provisions concerning witnesses.

§ 28-6 Experts witnesses

(1) A party may call witnesses to give expert testimonial evidence.

(2) An expert witness may attend the proceedings throughout and may be permitted to present questions to parties, witnesses and experts. The examination shall in other respects take place pursuant to the provisions concerning ordinary witnesses.

Chapter 29: Real evidence

§ 29-1 Real evidence

Real evidence connotes individuals and objects (real property, movable property, documents, electronically stored information etc.) who or which in themselves, or whose or which properties, states or contents, contain information which may be of importance to the factual basis for ruling on the case.

§ 29-2 Presentation of documentary evidence

Documentary evidence shall be presented by way of such evidence being described, with its important aspects being pointed out. The description shall be no more detailed than required on account of the need for proper presentation of evidence.

§ 29-3 Presentation of other types of real evidence

Other types of real evidence shall be presented by way of such evidence being assessed by the adjudicating court itself or by such court having it assessed pursuant to the provisions of Chapter 30.

§ 29-4 Individuals as evidence

Individuals shall be obliged to make themselves available for assessment to the extent that this may be accomplished without undue strain and without causing undue offence.

§ 29-5 Objects as evidence

(1) All persons are obliged to make available as evidence objects which are in their possession or of which they can obtain possession.

(2) The parties and others may, in order for the obligation pursuant to paragraph (1) to be implemented, be ordered to answer questions as to whether they are aware of items of evidence and to undertake necessary investigations in such respect. They may also be ordered to prepare summaries, extracts or other descriptions of information which may be gathered from items of evidence.

(3) The court may refuse access to evidence pursuant to paragraphs (1) or (2), if such access would incur expenses which are not reasonably proportionate to the dispute and the potential value of the evidence, or if the party has himself approximately the same scope for obtaining access to such evidence. The court may make access to evidence conditional upon the person having requested such access advancing the expenses involved.

§ 29-6 The contents of an application for access to evidence

(1) An application for access to or questions concerning real evidence shall be specified in such a manner that it is clear to which item of evidence the application relates.

(2) The court may relax the specification requirements if these are unreasonably complicated to comply with, provided that there is clear possibility of the application yielding access to evidence.

§ 29-7 Disputes concerning access to evidence

(1) The court may in case of dispute concerning access to items of evidence demand that the item be presented for determination of whether it constitutes evidence.

(2) If the application for access to evidence meets with an objection to the effect that it is subject to an evidence prohibition or evidence exemption, such item of evidence shall not be presented unless the court by authority in a special statutory provision may determine that such evidence shall still be presented. If only part of the item of evidence is subject to an evidence prohibition or evidence exemption, the remainder shall be presented if possible. Section 27-8(2) second and third sentence shall apply correspondingly.

(3) The court shall to the extent required determine in more detail how the evidence shall be made available, how it shall be kept and other aspects of relevance to the presentation of such evidence. The evidence shall not made known until the dispute as to access to evidence has been resolved in a binding manner.

§ 29-8 Enforcement

(1) The court may, if a person who is not a party refuses to comply with a legally enforceable interlocutory order on access to evidence, make a ruling to the effect that such interlocutory order shall be enforced.

(2) The same shall apply to a party in cases where the court has a duty to ensure a sound factual basis for ruling on the case, cf. section 24-3(2).

Chapter 30. The taking of evidence within a lawsuit

§ 30-1 Conditions for taking of evidence

(1) Evidence may be taken by way of judicial examination of parties, witnesses and experts as well as assessment of real evidence for use in ruling on the case, to the extent provided pursuant to section 24-11(1) in cases involving oral proceedings, and section 24-13 in cases being dealt with through written proceedings.

(2) Evidence may be taken for use in preparing the case, provided that it is of particular importance to obtain access to such evidence at that stage.

§ 30-2 The application for taking of evidence. The ruling of the court

(1) The court dealing with the case may on application from a party decide that evidence shall be taken, and may do so of its own accord in cases where pursuant to section 24-3(2) the court has a duty to ensure a sound factual basis for ruling on the case.

(2) If there is a need for evidence to be taken, an application to that effect shall be submitted as early as possible during the course of the preparation of the case. Reasons shall be stated for the application, and the summary of evidence shall be clarified pursuant to section 24-6(2). The court may refuse evidence to be taken pursuant to section 22-2(3) if the application has been submitted too late.

(3) The evidence may be taken by the court dealing with the case, or by a different court by way of a letter of request pursuant to sections 44 to 51 of the Courts of Justice Act. If the evidence is to be taken by a different court, the letter of request shall include the required details as to the case and the issue to be clarified.

(4) If expertise is necessary to perform the assessment of evidence, the court may appoint an expert pursuant to section 28-2 and entrust him with the assessment.

§ 30-3 Implementing the taking of evidence

(1) Evidence shall be taken pursuant to the general provisions that apply to the relevant type of evidence as far as they are appropriate.

(2) The parties shall be notified of a judicial examination or judicial assessment of evidence, cf. section 17-2(1). Evidence may be taken despite the parties being absent. A party who had not been notified or who had a valid excuse for non-attendance may demand that evidence be taken anew. The parties shall be notified of an assessment of evidence by an expert, and shall be allowed to attend to their interests to the extent compatible with the assignment with which the expert has been entrusted.

(3) Objections to an obligation to make a statement or an obligation to provide access to real evidence, as well as other disputes related to the taking of evidence shall to the extent possible be determined by the court dealing with the case. Such disputes may nevertheless be determined by the court taking the evidenceif undue delay or other inconvenience would otherwise result.

(4) The court dealing with the case may bring the ruling of the court taking the evidence before the immediately superior court. If the case is being dealt with by a superior court, such court may itself reverse the ruling pursuant to the first sentence.

(5) The parties may, if there are inadequacies relating to the taking of evidence, demand that these be rectified by the court dealing with the case, if required, by way of the evidence being taken anew. The court may rectify the inadequacies of its own accord.

§ 30-4 Direct examination and long-distance examination

The taking of evidence which has been determined pursuant to section 24-11(1)(a) shall be performed by way of direct examination before the court taking the evidence. In other cases the evidence may be taken by way of direct examination or long-distance examination pursuant to section 24-10.

§ 30-5 Effecting the assessment of evidence

(1) The person undertaking the assessment of evidence shall take such steps as are required for achieving the purpose of the assessment.

(2) Statements may be obtained from parties or witnesses. In such case, section 30-4, second sentence, shall apply correspondingly. The court may determine that information for use in the assessment shall be obtained by way of judicial examination pursuant to section 30-4.

(3) The assessment may be extended to other issues than those under assessment, provided that it is appropriate and may be accomplished without significant disadvantage or expense.

§ 30-6 Reporting on the assessment

(1) The person having undertaken the assessment shall in writing or by other suitable means provide an account of the assessment and its results. An account shall be given of statements obtained.

(2) The court may obtain further information on the assessment.

§ 30-7 Taking of evidence outside the courts

Evidence may be taken outside the courts by agreement between the parties.

Chapter 31. The securing of evidence outside a lawsuit

§ 31-1 Securing of evidence

Evidence may be secured outside a lawsuit by way of judicial examination of parties and witnesses as well as the provision of access to and assessment of real evidence.

§ 31-2 Conditions for securing evidence

Evidence may be secured if it may be of importance in a dispute to of which the person submitting the application for securing evidence may become a party or intervener, in so far as there is a clear risk of the evidence being lost or considerably impaired, or if there are other reasons why it is of particular importance to obtain access to such evidence prior to the lawsuit being initiated.

§ 31-3 The application for securing evidence. The ruling of the court

(1) An application for securing evidence shall be submitted to the court before which a lawsuit could have been brought. The application may be submitted to a different court, provided that it is obvious that the evidence ought to be secured by such court. If an application for securing evidence relating to the facts of the case has previously been submitted, the new application shall be submitted to the same court. Section 4-6 shall apply correspondingly.

(2) In addition to the person against whom the application is directed as such, the application shall specify as opposite party whomever it must be expected that any ensuing action will be directed against.

(3) Evidence may be secured immediately provided that swift implementation is necessary to secure the evidence. If possible, notification shall be given to the opposite party so he can be represented during the securing of evidence. If notice is not possible, the court shall appoint a representative for the opposite party, and shall as soon as possible inform the opposite party as to what has taken place.

(4) The court may make a temporary ruling for securing evidence without notification of the opposite party, provided that there is reason to fear that notifying the opposite party could prevent evidence from being secured. The person having submitted the application should not be allowed access to the evidence until the ruling is final in circumstances where it may be of importance to the opposite party to prevent such access. The court may make the ruling conditional upon the person having submitted the application paying or providing security in respect of the expenses involved. Section 15-10 of the Enforcement Act shall apply correspondingly.

§ 31-4 Implementing the securing of evidence

The provisions on access to real evidence and the taking of evidence in lawsuits shall apply correspondingly to the securing of evidence as far as they are appropriate.

§ 31-5 Expenses relating to the securing of evidence

(1) The party applying for the securing of evidence shall cover the expenses incurred by opposite parties pursuant to section 31-3(2) and expenses relating to the appointment of a representative pursuant to section 31-3(3).

(2) The obligation pursuant to paragraph (1) may lapse in full or in part if the application for the securing of evidence has been occasioned by the opposite party pursuant to section 31-3(2) without reasonable cause resisting the securing of evidence and access to evidence, or without reasonable cause contesting the application. The person having submitted the application, as well as other parties, may in such circumstances be awarded costs in full or in part from the uncooperative party.

Part VII – Special types of procedure Chapter 32. Class action

§ 32-1 Scope. Definitions

(1) This Chapter contains special provisions for dealing with a class action before the Municipal Court, and for appeals brought against rulings on a class action.

(2) A class action is an action brought by or directed against a class on an identical or materially similar factual and legal basis, and which has been approved by the court as a class action.

(3) Class procedure is the set of special procedural provisions pertaining to class actions.

(4) The class comprises such natural and legal persons as possess claims or are subject to obligations falling within the scope of the class action as defined by the court, and who are included in the action pursuant to sections 32-6 or 32-7.

(5) Class members are the individual natural and legal persons comprised by the class.

(6) The class register is the register of class members maintained pursuant to section 32-6.

(7) The class representative is the person acting on behalf of the class in the action pursuant to section 32-9(1) to (3).

§ 32-2 Prerequisites for class action

(1) A class action may only be brought if

  • (a)several natural and legal persons possess claims or are subject to obligations on a materially similar factual and legal basis,

  • (b)the claims may be dealt with by the court having the same composition and in the main pursuant to the same procedural provisions,

  • (c)class procedure is the most appropriate way of dealing with the claims, and

  • (d)a class representative may be nominated pursuant to section 32-9.

(2) Only such persons as could have brought or joined a regular legal action before the Norwegian courts may be class members.

§ 32-3 Bringing the action

(1) A class action may be brought by

  • (a)anyone fulfilling the prerequisites for being a class member if the court approves the action, or

  • (b)an organisation, an association or a public body, provided that the action falls within the scope of its purpose, cf. section 1-4.

(2) The action shall be brought by submission of a writ of summons to a Municipal Court before which a person who qualifies for being a class member could have brought a regular legal action.

(3) The writ of summons claim form shall provide the court with the information required for it to assess whether the prerequisites for a class action are fulfilled and for it to determine such issues as are required pursuant to section 32-4(2). The writ of summons shall specify whether the request for a class action pertains to an action pursuant to section 32-6 or to an action pursuant to section 32-7.

§ 32-4 Certification of class action

(1) The court shall as soon as possible determine whether to approve the class action for hearing before the court or to disallow it.

(2) If the court agrees to hear the class action, the court shall in its ruling to such effect

  • (a)describe the scope of the claims which may be included in the class action,

  • (b)determine whether the class action shall be dealt with pursuant to section 32-6 or pursuant to section 32-7,

  • (c)in case of a class action pursuant to section 3-6, determine a time limit for registration on the class register,

  • (d)determine any maximum liability for the class members as to costs pursuant to section 32-6(3), and

  • (e)nominate a class representative.

(3) If the further processing of the case shows that it is clearly inappropriate to deal with the case pursuant to the provisions on class procedure, or that the scope of the class action in terms of which claims to include should be redefined, the court may of its own accord reverse or amend its previous ruling. Parties who following such reversal or amendment are no longer included in the class action may within one month of the ruling for reversal or amendment becoming legally enforceable, demand that the court continue the processing of their claims in the form of individual actions.

(4) Rulings pursuant to paragraphs (1) to (3) shall be made in the form of interlocutory orders. Section 11-3(2) shall not apply in case of appeal.

§ 32-5 Notification of approved class action

(1) Once a case has been approved as a class action, the court shall by notification, announcement or other method ensure that the class action be made known to those who qualify for joining it, or who are class members pursuant to section 32-7.

(2) The notification or announcement shall make clear what are the implications of the class action and the class procedure, including consequences of registering or demanding to be deregistered as a class member, and the liability for costs which may be incurred. The time limit for registering on the class register shall be specified in the notification.

(3) The contents of the notification, its method etc., shall be determined by the court, hereunder whether notification or announcement shall be carried out by the class representative.

§ 32-6 Class actions requiring registration of class members

(1) The class action shall only include those persons registered as class members, unless the action is being dealt with pursuant to section 32-7.

(2) An application for registration shall be submitted within the time limit for doing so. The court may in special cases approve a delayed registration prior to the main hearing, unless material concerns respecting the other parties suggest otherwise.

(3) The court may on application from the person demanding the class action determine that registration shall be conditional on the class members being liable for costs pursuant to section 32-14 up to a specified maximum amount. The court may also on application determine that such amount be paid to counsel of the class as security prior to registration.

(4) If the registration is approved, such registration shall be deemed to have taken place at the time of the application for registration having been submitted.

(5) The class register shall be maintained by the court. More detailed provisions as to the class register may be prescribed by way of regulations.

§ 32-7 Class actions not requiring registration of class members

(1) The court may determine that those possessing claims within the scope of the class action shall be class members without registration on the class register, provided that the claims

  • (a)on their own would involve amounts or interests too minor for it to be assumed that they would be raised in the form of individual action, and

  • (b)are not deemed to raise issues requiring to be dealt with individually.

(2) Whoever does not want to participate in the class action may withdraw pursuant to section 32-8.

§ 32-8 Withdrawal from being a class member

(1) Anyone may withdraw as a class member. This shall be effected by deregistration from the class register or, in respect of actions pursuant to section 32-7, by it being noted on the class register that such person shall not be a class member. The withdrawal becomes effective upon the receipt of the notification by the court. Withdrawal may not take place subsequent to the claims of the class members having been resolved by way of a legally enforceable ruling.

(2) Withdrawal prior to the case being determined on its merits in a manner which is binding on the class members pursuant to section 32-11, may be effected without the person withdrawing waiving the substantive claim having been brought.

(3) In case of withdrawal subsequent to the case having been determined on its merits in a manner which is binding on the class members pursuant to section 32-11, any further processing of the claim required shall continue before the court pursuant to the provisions on ordinary procedure or, if the claim falls within the scope of section 10-1, those on small claims procedure. If further processing of the claim of the party requires review on appeal, the person having withdrawn shall bring an appeal if he is desirous of such review. The notice of appeal shall be submitted no later than one month after the expiry of the time limit for bringing an appeal as applicable to the class as such. Such person may bring an appeal irrespective of such time limit having expired, provided that the class as such has brought an appeal. In such case the notice of appeal shall be submitted at the same time as the withdrawal of such person from the class is being notified, and the appeal shall fall within the scope of the appeal brought by the class.

(4) A person who has brought the claim by way of individual action shall for purposes of the above provisions be regarded as having withdrawn from the class action. In respect of actions pursuant to section 32-7 such effect shall cease upon the individual action being quashed.

§ 32-9 Rights and obligations under the class action. Representation

(1) The rights and obligations under the class action shall be attended to by the class representative. The class representative has a duty to ensure that the class members receive all information which they may reasonable require as to the class action. This is of particular importance concerning procedural steps and rulings which may have consequences for the claims of the class members.

(2) The person bringing a class action pursuant to section 32-3(1), may act as class representative, provided that he is willing to do so.

(3) The class representative shall be nominated by the court. The representative shall be able to attend to the interests of the class in a satisfactory manner, and be able to account for the potential liability of the class respecting the costs of the opposite party. The court may revoke a nomination of a class representative and nominate a new one if required. Section 32-4(4) shall apply correspondingly to rulings on the revocation of an existing nomination and on the appointment of new class representative.

(4) The class shall during the proceedings be represented by an advocate as counsel. The court may grant exemptions from this requirement in special cases.

§ 32-10 Aspects of the dispute which only relate to one or a limited number of class members. Subgroups

(1) The court may determine that the provisions on class procedure shall not be applied to dealing with aspects of the dispute which only relate to a limited number of class members. In such case the class members shall control such aspects themselves. The court shall determine the order in which the various issues shall be dealt with. The court should normally deal with such issues as relate to the class as a whole before dealing with specific issues relating to one or a limited number of parties.

(2) If the class consists of a large number of class members, and legal or factual issues arise which apply to several of them in an identical or materially similar manner, but which differ from the issues which apply to the class as a whole, the court may determine that subgroups shall be established. The provisions of this chapter shall apply correspondingly to the establishment of subgroups and the processing of the issues applying to them only.

§ 32-11 Rulings on claims raised in the class action. Settlement

(1) Rulings on claims raised in the class action shall be binding on those who are class members at the time of the ruling.

(2) The court may split the adjudication in order that it may first rule on the claims of one or some of the class members, provided that objections and contentions are such that it would be impractical to rule on the merits of the case in respect of the claims of all class member at the same time. Such initial judgement shall be accepted without review for purposes of subsequent adjudication, unless it is specified that there are specific reasons for the rulings diverging. Such effect of the initial judgement shall not apply to the determination of factual and legal circumstances which the class members have been prevented from having reviewed by way of appeal.

(3) A settlement in a class action pursuant to section 32-7 shall require the approval of the court. Section 32-4(4) shall apply correspondingly to ruling on such approval.

§ 32-12 Costs

(1) The class representative has a right and an obligation in respect of the costs of the class action.

(2) The court shall in case of the replacement of a class representative by another determine how the right and obligation in respect of costs shall be allocated between them.

(3) The regular provisions on costs shall apply to costs relating to aspects of the dispute processed pursuant to section 32-10(1).

§ 32-13 Remuneration

Counsel and the class representative are entitled to remuneration for the work and refund of their expenses. The remuneration and the refund of expenses shall be determined by the court. These claims may be directed against the opposite party of the class to the extent that liability for costs is imposed on such opposite party, and may be directed at class members within the limitations pursuant to section 32-14.

§ 32-14 The financial liability of the class members etc.

(1) Class members, except class members in an action pursuant to section 32-7, are liable as against the class representative for costs imposed on him pursuant to section 32-12 and for remuneration awarded counsel and the class representative pursuant to section 32-13. The liability of each class member is limited to the amount specified or paid in as a prerequisite for registration, cf. section 32-6(3). Amount not paid in previously shall be paid in to counsel of the class.

(2) Previous class members excluded from the class pursuant to section 32-4(3), shall not be made liable pursuant to paragraph (1). Any amounts paid in pursuant to section 32-6(3) shall be refunded. The court shall determine whether those who have withdrawn from the class by way of deregistration shall be liable pursuant to paragraph (1). In ruling on such issue weight shall be attached to whether a significant part of the costs have been incurred by the time the deregistration takes place.

(3) Upon the account payable to counsel having been settled, counsel is obliged to transfer amounts paid in pursuant to paragraph (1) for settlement of any costs awarded to the opposite party of the class, prior to payment being made to the class representative.

§ 32-15 A class as respondent

Sections 32-1 to 32-14, except 32-7, shall apply correspondingly to the extent suitable if the class comprises parties on the respondent side.

Chapter 33. Cases concerning administrative decisions relating to coercion

§ 33-1 Scope

(1) The provisions of this chapter shall apply to legal actions which pursuant to special statutory provisions may be brought for judicial review of administrative decisions relating to coercion. Other claims shall not be included in the action.

(2) Legal action pursuant to the provisions herein shall not be brought subsequent to the decision having lapsed. The action shall be quashed if the decision lapses subsequent to judicial review having been demanded.

(3) Renewed judicial review may only take place subsequent to the case again having been dealt with administratively.

§ 33-2 How and where legal action shall be brought. The effects of legal action

(1) Legal action shall be brought by a claim for judicial review being submitted to the authority having made the decision. Such authority shall immediately forward the claim for judicial review to the court together with the documents relating to the case.

(2) The action shall be dealt with by the Municipal Court in the judicial district where the private party is located in accordance with the decision, where he has his ordinary venue, or where he had his ordinary venue prior to the decision having been implemented.

(3) Legal action shall not prevent the decision being implemented or maintained unless the courts determines otherwise by way of interlocutory order. The decision being suspended shall not imply that it lapses.

§ 33-3 The parties etc.

(1) The legal action shall be brought by the person against whom the decision is directed, or by such person as may bring such action pursuant to special statutory provisions.

(2) The person against whom the decision is directed may bring a legal action on his own, provided that he is able to understand what the case is concerned with. Minors shall nevertheless not be permitted to bring a legal action on their own until after their fifteenth birthday, unless otherwise provided by special statutory provision.

(3) The legal action shall be directed against the State, as represented by the Ministry. The legal action shall in cases concerning decisions made by the County Board for Social Cases be directed against the municipality. When brought by the municipality, the legal action shall be directed against the private party or parties to the decision being challenged.

§ 33-4 The composition of the court

(1) The Municipal Court shall sit with two lay judges, of which one or both may be experts appointed by the court. In special cases the court may sit with four lay judges, of whom two shall be experts.

(2) A person who sits on the panel of the County Boards or the Anti-Infection Boards or who is a member of a Mental Health Care Control Committee may not serve as a judge, provided that the action concerns judicial review of a decision made by the type of body of which such person is a member or on the panel of which such person is included.

(3) The Courts of Justice Administration may establish one or more panel or panels of person having expertise relating to cases to be dealt with pursuant to this Chapter.

§ 33-5 The processing and review of the court

(1) The date of the main hearing shall be determined immediately.

(2) The case shall be given high priority, and shall be dealt with as swiftly as possible in view of the need for the case to be processed in a sound manner.

(3) The court shall review all aspects of the case, subject to any limitations set out by the relevant statute.

§ 33-6 Entitlements etc. of the private party

(1) The court may refrain from obtaining an affirmation from the private party.

(2) Personal examination of the private party may be omitted, provided that the court finds this to be unproblematic.

(3) The court may determine that the private party shall be denied access to documentation and be excluded from the proceedings, to the extent required on account of his state of health or his youth. In such case the presiding judge, or counsel or a representative of the private party, shall make such party aware of the main contents of the documents or proceedings to the extent that such information is of relevance to the case.

(4) The court shall determine by what method the private party shall be made aware of the rulings of the court and the appeal provisions.

§ 33-7 Access to documentation and court sittings

(1) The general public shall not have access to the documents relating to the case.

(2) Court sittings shall take place in camera. Court sittings may nevertheless in full or in part be held in open court, provided that it is requested by the private party and that the court finds it to be unproblematic on account of concern for the clarification of the case, concern for the private party himself and concern for others.

§ 33-8 The expenses relating to the case

All expenses relating to the case shall be paid by the State, unless otherwise provided by specific statute.

§ 33-9 Anticipatory effect etc.

(1) A judgement to the effect that the decision relating to coercion shall be discontinued, shall enter into force immediately.

(2) The court may nevertheless in the judgement determine that it shall not have anticipatory effect, provided that there shall be particularly weighty reasons for doing do. The ruling may only be appealed within the limitations pursuant to section 11-3(3).

§ 33-10 Appeal

(1) Section 11-9(3) and (4) shall not apply in case of appeal from the private party.

(2) The party may, if he has been deprived of his liberty, submit his appeal to the head of the institution where he is staying, in which case such head shall immediately forward the appeal to the court having make the ruling.

(3) Section 33-2(3) on suspension shall apply correspondingly in respect of an appeal brought against a judgement. In case of appeal being brought against a judgement to the effect that the decision relating to coercion shall be discontinued, the appellate court may by way of interlocutory order determine that the decision relating to coercion shall remain in force until a legally enforceable ruling is in place. The appellate court may by way of interlocutory order, reverse a ruling pursuant to section 33-9(2).

(4) In case of an appeal against a judgement being brought before the Court of Appeal, such court shall sit with two lay judges, of which one or both may be experts appointed by the court.

(5) The provisions of this Chapter shall otherwise apply to dealing with appeals to the extentappropriate.

2 Brief Summary and Overview of the Report

2.1 Part I of the Report - Draft Statute, Background and Summary

2.1.1 General remarks on Part I

Part I of the report includes a draft version of the Act relating to the Resolution of Disputes (the Dispute Act), an account of the appointment, terms of reference and work of the Committee, and a summary.

2.1.2 The appointment, composition and terms of reference of the Committee

The Committee provides an account of its appointment, terms of reference and work in section I.2. The royal decree of 9 April 1999 on the appointment of the Committee and the submission of the Ministry of Justice have been reproduced in the main. The terms of reference may be summarised as charging the Committee with preparing a draft version of a new statute relating to the resolution of legal disputes. Specific guidelines for the choice and drafting of the provisions were not laid down. It was pointed out that the Committee shall keep in mind that procedural law should be a useful tool for the courts, the advocates and the parties. Procedural law shall assist the courts in fulfilling their duties relating to the civil administration of justice, as well as promoting dispute resolution, clarification of the law and implementation of substantive law in a swift and inexpensive manner while adhering to due process of law. The importance of user-friendliness was pointed out.

The work of the Committee is described in section I.2.3. The Committee established its own homepage on the Internet at an early stage. Over time all working papers of the Committee have been made available through the website, with an invitation for all interested parties to submit their own suggestions on the various topics. The papers have also been forwarded to a number of institutions and persons to whom the Committee assumed that they might be of special interest. The Committee has held a number of meetings and seminars, both in Norway and abroad. Study tours have been completed. The Committee has through all these activities obtained access to experience and suggestions which have formed a valuable basis for its deliberations. Taken as a whole, this has undoubtedly led to the draft provisions and the discussions having developed differently from what would otherwise have been the case, as well as to the quality of the reports having been improved.

The Committee would like to convey its special thanks to all those who have in various ways assisted it in its work.

The Committee has set out some remarks on the terms of reference and the report in section I.2.4. Section I.2.5 explains that the arbitration provisions are being presented by way of a separate draft statute, and that the Committee has prepared a separate report on arbitration. In section I.2.5 the Committee suggests that, and provides reasons why, the name of a new statute relating to the resolution of legal disputes should be the Act relating to the Resolution of Disputes, with the Dispute Act as the official abbreviation. Such statute will address dispute resolution by other means than arbitration.

The draft statutes and the summaries of the reports have been translated into English. The reasons for doing so are explained. The English translations have been appended as exhibits to the reports.

In section I.2.6 the Committee emphasises that the provisions on dispute resolution have to be assessed and updated on a continuous basis.

2.2 Part II of the Report – General Discussions

2.2.1 The need for reform of the provisions on civil procedure

As an introductory remark it is in this Part of the report pointed out that the report of the Committee as a whole is a compilation of discussions on the needs for reform within the area of civil procedure as well as how such needs should be accounted for in the new Dispute Act. It is remarked that special emphasis is placed on the needs for reform in Chapter II.3 on the basic underpinnings of the new Dispute Act and Chapter II.9 on the main aspects of the procedural rules applicable to the courts at various levels. In Chapter II.1 the Committee summarises some important reform needs.

Work on the Dispute Act of 1915 was initiated through the formation of the Civil Procedure Commission by royal decree of 3 January 1891. As adopted, the Act was characterised by the social believes and thinking of the final decades of the 19th century and the first few years of the 20th century. The Dispute Act of 1915 is, together with the Courts of Justice Act, the only of the main procedural statutes not having been replaced by a new statute. The basic characteristics of the Dispute Act of 1915 remain the same as when it was first enacted, although innumerable amendments have been made to it since. It is still to a considerable degree influenced by the mindset of the period of its origin.

Norwegian society has changed enormously since the end of the 19th century. The types of legal disputes in need of resolution are to some extent fundamentally different, the caseload has increased considerably, and the types of parties as well as the relationship between these are often totally different. All these factors suggest a need for a thorough revision of the rules on dispute resolution, and a completely new Act relating to the Resolution of Disputes.

Adopting an international perspective confirms the need for a new statute. Abroad, as in Norway, civil dispute resolution has been characterised by expensive and lengthy proceedings, and by major groups in society having experienced difficulties in obtaining access to the court system. This situation has led to comprehensive procedural reforms in some jurisdictions.

Various aspects of the procedural arrangement have to be assessed to ensure that the various conventions on human rights, which are binding on Norway, are being adhered to and take precedence. Such assessment has not taken place in respect of the Dispute Act of 1915, with the exception of a limited number of more recent provisions. There is also a need for reviewing the procedural rules to reflect implications of the provisions relating to the European Economic Area («EEA»).

The need for reform and the structuring of the new Dispute Act should be approached from the point of view of which functions the law and the courts should serve within the context of civil dispute resolution. It is important to prepare the ground for the parties themselves to be able to resolve their disputes without litigation, but they should at the same time enjoy a reasonable degree of access to the courts as and when required.

Dispute resolution serves a social function, by ensuring that substantive law takes precedence, that it is respected and that it influences behaviour. Such social concerns should be attended to in a better way than is the case with the provisions of the Dispute Act of 1915.

The need for rational and appropriate dispute resolution of a high quality would also suggest that alternative dispute resolution methods should be available in addition to resolution by judgement. A keyword is increased use of judicial mediation.

As mentioned, access to dispute resolution before the courts is important. The Municipal Courts should be available for lawsuits respecting claims of a more «ordinary» nature. From this perspective the Committee is of the opinion that the introduction of a small claims procedure is of importance.

The need for the method of dealing with a dispute to reflect the nature of the dispute is of more general relevance. Proportionality – the relationship between the procedure and what is being processed – should in the new Dispute Act be emphasised much more than is the case with the Dispute Act of 1915.

Processing of cases before the courts often take far too long. It is important that the process be focused on what is in dispute and what is essential to the resolution of such dispute, and not least that the proceedings be completed within a reasonable period of time.

Active management of cases is an important means of achieving the goal of swifter processing of disputes. The need for attaching more weight to the duty of the court to provide guidance to the parties may be mentioned in relation to the issue of managing cases.

In some cases there is a problem of procedural inequality between, on the one hand, parties having the ability to commit considerable financial resources to the proceedings and, on the other hand, parties of more limited means. The procedural rules should aim at trying to reduce the effects of such inequalities. The Committee points to various ways in which this may be achieved to some extent.

The Dispute Act of 1915 is in the main structured with disputes between two, or at least a limited number of, parties in mind. Legal disputes in a modern society will, however, often display more complex and asymmetric combinations of parties. From this perspective the Committee points to the need for provisions on class action.

There is a need for major changes to the rules on evidence. Long-distance examination should be more available than at the moment. Long-distance examination should also in general be preferred as an alternative to the taking of evidence in court prior to the hearing. More weight should be attached to proportionality also in the context of presentation of evidence, in order to avoid extensive presentation of evidence that is out of proportion to the significance of the dispute.

A number of obviously hopeless claims are being brought before the courts. The Committee sees a need for provision of a simplified method of resolution in such cases.

There is a need for amendments to the rules on costs, partly to make them less complicated and to reduce litigation motivated by them, but also to try to reduce the much too high cost level to some extent.

There is a need for restricting the scope for appeals, based on concerns as to proportionality and other factors.

2.2.2 Resolution of civil legal disputes in a historical perspective

The Committee provides a brief historical overview of methods of dispute resolution, procedural rules and court systems from ancient times until today. References to literature on the topic are included.

2.2.3 Important perspectives and concerns in drafting the new Dispute Act

In section II.3.1 the Committee starts out by discussing the functions and purposes of the Dispute Act and the courts. It is pointed out that the Act should serve two main functions. It shall afford due process protection for individuals, by parties having their legal disputes resolved in a sound manner by independent and unbiased resolution bodies, first and foremost of which are the courts of justice. Thereafter the wider, more general social function is pointed out. The Dispute Act and the dispute resolution shall ensure that substantive law takes precedence. It shall be a guiding influence and have consequences for the behaviour of individuals. It is emphasised that the obvious point of departure in preparing the Dispute Act has to be that the Act in its entirety has to be adapted to the functions and purposes of such Act and the individual courts. It is discussed in more detail how these two main perspectives should influence the choice and formulation of the provisions of the Dispute Act.

In relation to the social relevance of resolution of civil legal disputes the Committee points out that the courts of justice – first and foremost the Supreme Court – serve an important function in promoting clarification and development of the law. The consequences of such function for the procedural rules applicable to cases before the Supreme Court are discussed.

In section II.3.2 the Committee briefly refers to the implications of international law and other international perspectives for the Dispute Act. Such perspectives are important. They are discussed in more detail in Chapter II.4.

The need for alternative dispute resolution is pointed out in section II.3.3. It is the view of the Committee that alternative dispute resolution must be a central feature of the structure of the new Dispute Act. This is discussed in more detail in Chapters II.6 and II.7.

In section II.3.4 the Committee discusses various aspects of what may be labelled the «court threshold». It is pointed out that such threshold should be no higher than necessary. It should be relatively simple for individuals to obtain assistance from the courts in resolving ordinary legal disputes. Various ways of achieving this should be discussed.

Dependability and proportionality are both important considerations during proceedings. These concerns, which may be partially incompatible, are discussed by the Committee in section II.3.5.

Concern for the compactness and swiftness of proceedings are dealt with in section II.3.6.

Section II.3.7 comprises a relatively broad-based discussion of active management of cases by the court. Inadequacies in respect of the current method of processing cases are pointed out. The importance of active management of cases is emphasised.

In section II.3.8 the Committee raises the question of whether the civil procedure should be dominated by the parties or by the courts. Fundamental provisions as to the authority, rights and obligations of parties and the court are discussed. The answer of the Committee to this question is that Norwegian civil procedure is, and according to the proposal of the Committee shall continue to be, dominated by the parties, and not by the courts. The Committee explains why this is not contradicted by the duty of the court to actively manage cases. In cases where the parties have an unrestricted right of disposition it should continue to be their obligation to look after the presentation of evidence and the provision of a sound factual basis for ruling on the case. It is proposed that the fundamental provisions of the Dispute Act of 1915 concerning the role of the court in addressing the procedural strategy of the parties be maintained without major changes.

The duty of the court to provide guidance is discussed in relative detail in section II.3.9. A distinction is made between guidance as to the processing of the case and guidance directly related to the substantive issues raised by the case. It is the assessment of the Committee that no major changes should be made to the current rules on guidance on substantive issues, but rights and, if applicable, obligations, in such respect should be laid down by statute. As far as guidance in respect of the processing of the case is concerned, this is amongst other reasons important to prevent parties from suffering needless loss of legal rights in legal disputes. There are not many grounds for objecting to the duty to provide guidance in respect of procedural aspects of the case being relatively comprehensive.

Oral and written proceedings are discussed in section II.3.10. In general the Committee regards oral proceedings and direct presentation of evidence as fundamental to a sound civil procedure system. The current provisions are maintained by and large. The Committee does, however, allow for somewhat more use of oral proceedings in cases where written proceedings are the norm under the current system, and in some cases it allows for a limited written element in proceedings that are otherwise conducted orally. The Committee is of the view that the proceedings should to a larger extent be adapted to the complexity and importance of the issues under consideration, as opposed to the main criteria being whether the proceedings are addressing the substantive claim or a procedural claim relating to the case.

Section II.3.11 discusses assessment and presentation of evidence. The principles of unrestricted presentation and assessment of evidence are maintained. The importance of direct presentation of evidence is underscored. It is pointed out that there is a need for modifying the categorical prohibition on extra-judicial statements as per section 197 of the Dispute Act of 1915. Other aspects of the rules on evidence are mentioned as well.

The adversary principle is in section II.3.12 emphasised as an essential feature of the procedural system.

In section II.3.13 the Committee discusses the significance of equality between the parties in terms of procedural resources – «equality of arms» – and various ways of levelling the playing field.

The question of whether to create different «procedural tracks», each with their own set of procedural rules based on the value of subject-matter in dispute, the complexity of the case etc., is discussed in section II.3.14. The conclusion of the Committee is that one should have a set of regular provisions – ordinary procedure – and a small claims procedure in addition. The procedural provisions within the ordinary procedural system should, however, be sufficiently flexible for such system to be able to accommodate particularly important and complex disputes.

The issue of whether it should be permitted for the procedural set-up to be made-to-measure is raised in section II.3.15 – i.e. whether the parties should be able to agree the details of how the dispute is to be dealt with. It is pointed out that the parties by agreement should be able to influence the processing of the case in various ways, while a general provision to the effect that they should be able determine the procedural set-up is not viable.

Special problems relating to cases in which the parties do not have an unrestricted right of disposition are discussed in section II.3.16.

A number of baseless claims are brought before the courts, and there are well-founded claims that meet with clearly baseless objections. The Committee is proposing that judgement may in such cases be pronounced after a simplified procedure – so-called simplified judgement proceedings – see section II.3.17.

The right to review of judicial rulings is discussed at a general level in section II.3.18. The Committee points out that proportionality is an important aspect of the issue of which rulings should be open to review. It is furthermore underscored that review should be structured in such a manner that it does indeed become a review, rather than the case once more being dealt with in full.

The participation of laypersons is discussed in section II.3.19. It is pointed out that the use of lay judges has never in modern time had the same position within civil procedure as within criminal procedure, with the exception of the Conciliation Boards. The conclusion of the Committee is that the Conciliation Boards should continue to be operated by laypersons, and that the system of expert and «regular» lay judges in the Municipal Courts and the Courts of Appeal should be maintained.

Freedom of information as an aspect of the administration of justice is discussed in section II.3.20. It is a matter of course to the Committee that the main rule of court sittings taking place in open court should be maintained. The Committee is also of the opinion that a necessary implication of allowing a combination of oral and written deliberations in some cases is that the general public is permitted access to such submissions as will form the basis for ruling on the case.

Certain issues relating to whether dispute resolution should be operated on a private or public basis are discussed in section II.3.21.

Section II.3.22 discusses whether the new Dispute Act should include a statement of legislative purpose. The Committee is of the opinion that the Act should include such a statement. Such statement should also stress other important aspects of dispute resolution than those addressed by Article 6(1) of the European Convention on Human Rights («ECHR»).

Various aspects of the language and accessibility of the provisions of the new Dispute Act are discussed in section II.3.23.

2.2.4 International perspectives and influences on the new Dispute Act

These are dealt with in Chapter II.4. Section II.4.1 is introduced by pointing out that international regulations make requirements on the new the Dispute Act. It has been a matter of course to the Civil Procedure Committee that such norms should be absorbed within the framework of the new Dispute Act, and that the structure established by the Act should contribute to such norms being observed in each individual case. This perspective has characterised the general assessments of the Committee as well as its drafting of individual clauses, and has also been expressed in section 1-2 of the draft.

The international regulations may roughly speaking be divided into three groups. The first group consists of the type of regulations traditionally falling within the scope of international law, such as the international jurisdiction of the Norwegian courts, provisions on immunity, on international legal assistance, on the recognition of judicial rulings etc. The second group consist of the regulations relating to the EEA. And the final, but not the least important, group consists of the provisions on human rights.

In section II.4.2 the Committee discusses EEA-related provisions. An overview is provided of developments within the European Union («EU») and under the EEA-agreement, which are of relevance to civil procedure. An overview is provided of major treaties, directives etc. within the EU and their implications for civil procedure. It is pointed out that the developments seen within the EU have thus far not been reflected under the EEA-agreement, neither in terms of authorisation for harmonisation of certain aspects of civil procedure, nor in the form of specific provisions directly aimed at matters of civil procedure.

Implications of the principle of loyalty in Article 3 and the prohibition on discrimination in Article 4 of the EEA-agreement are addressed in particular. The Lugano Convention is also accounted for.

Implications of provisions on human rights undergo a detailed discussion in section II.4.3. ECHR, Article 6(1), and Article 14(1) of the International Covenant on Civil and Political Rights («ICCPR») are discussed in relative detail in section II.4.4 from the point of view of their implications for the framework of the new Dispute Act. The implications and requirements resulting from ECHR, Article 5, and ICCPR, Article 9, as to judicial review of deprivation of liberty imposed by administrative decision are discussed. The relevance of the entitlement to an effective remedy before a national authority pursuant to ECHR, Article 13, is analysed. ECHR, Article 8, and ICCPR, Article 17, protect private and family life. The implications of these provisions for procedural rules are discussed. The same applies to the requirements of ECHR, Article 10, and ICCPR, Article 19, on freedom of expression and information.

It is pointed out that a number of conventions imply that the administration of justice shall be based on non-discrimination, i.e. a prohibition on discrimination on the basis of criteria like sex, age, race, colour, ethnic origin, nationality, political or religious convictions, social status, language etc.

Procedural requirements emanating from the Indigenous and Tribal Peoples Convention are reviewed.

In section II.4.5 the Committee addresses the general reservation that should apply as to the requirements imposed by international law.

In section II.4.6 the Committee points out that there is a more indirect form of influence resulting from international regulations. This may take the form of rules recommended for use in domestic legislation by international organisations. It may, however, also be by way of influence through setting a good example or by way of the need for the procedural system to be recognisable to those involved in cross-border activities.

The discussion is rounded off by the Committee in Chapter II.4 broaching the issue of whether a major procedural reform of civil dispute resolution at the dawn of the 21st century ought to have been carried out as part of an internationalisation of procedural law, rather than by an isolated national procedural reform. The conclusion of the Committee is that reforming efforts in the form of a new Act relating to the Resolution of Disputes will within the foreseeable future have to be carried out through domestic legislation.

2.2.5 The subject matter of the legal action and the connection of the parties to such subject matter

What may constitute the subject matter of a legal action, and the requirements as to the connection of the parties to such subject matter is dealt with in Chapter II.5. In section II.5.1 it is pointed out that the traditional role of the courts has been to resolve specific legal disputes between different natural and legal persons. It is the conclusion of the Committee that the courts should keep to this traditional sphere.

Current law as per sections 53 and 54 of the Dispute Act of 1915 is reviewed in section II.5.2.

Section II.5.3 provides an overview of the prerequisites for bringing legal action in a few other countries.

Various aspects of the requirements as to the subject matter of the legal action and the connection of the parties to same are discussed and reviewed in section II.5.4. Judicial review of administrative decisions is dealt with separately. The question of which body a lawsuit on the validity of an administrative decision should be directed against is discussed, together with the question of compulsory joinder of a third party. The Committee discusses whether special provisions should be introduced in respect of requests for declaratory judgments for violations of ECHR etc. The conclusion of the Committee is that the provision proposed by way of section 1-3 of the draft allows for such actions whenever there is a real need for a declaratory judgement as to violation of such conventions, implying that specific authority for such actions would be superfluous.

A question assessed in some detail by the Committee is whether the State should be permitted to take part in actions raising questions of a potential conflict between Norwegian law and the obligations on Norway emanating from international law or international agreements, as well as a potential conflict between statutes and the Constitution. The Committee proposes a limited right for the State to act in such cases, and then only as far as cases before the Supreme Court which are being deliberated on in plenary or otherwise by more than five judges.

2.2.6 Obligations of the parties prior to bringing legal action. Non-judicial mediation

In Chapter II.6 the Committee discusses obligations of the parties prior to bringing legal action, and at more general level it addresses rules on non-judicial mediation.

Section II.6.1 introduces the theme by pointing out the importance of creating a climate and culture conducive to amicable solutions. The English civil procedure reforms are amongst the sources referred to in discussing various methods of achieving this.

In section II.6.2 the Committee addresses the obligations of the parties in terms of contributing to the clarification of the claims and their grounds. Such clarification is a requirement for resolving the dispute in an appropriate manner, and such clarification prior to bringing legal action may also provide a basis for an amicable settlement of the case.

In section II.6.3 the Committee analyses, under reference to the so-called pre-action protocols, whether there is within specific areas of the law a basis for imposing specific pre-action obligations on the parties, in order to achieve sufficient clarification of the dispute. The Committee is divided on the issue of whether authority for prescribing regulations of such nature should be granted.

Within the English procedural system considerable success has been achieved through the introduction of formalised settlement offers, so-called Part 36 Offers. The Committee is not proposing that such rules be introduced in Norway, but it points out that the provisions on costs are amongst the aspects of the procedural system which allow weight to be attached to whether a party has made a settlement offer. Reference is made to section II.6.4.

The Committee is proposing a set of rules on non-judicial mediation. The main concerns in such respect are discussed under section II.6.5.

2.2.7 Alternative dispute resolution

Alternative dispute resolution is discussed in Chapter II.7.

The Committee introduces the theme in section II.7.1 by mentioning that most legal disputes are resolved without the dispute being brought before the courts. Either the parties agree, or one of them abstains from pursuing his claim.

The system of mediation before the Conciliation Board and the regular courts is discussed in brief. Tests based on judicial mediation, as a more in-depth mediation method, are mentioned. A number of alternative dispute resolution methods through various complaints boards are explained in section II.7.2.

The development of so-called ADR (alternative dispute resolution) within United States law is described in section II.7.5.

In section II.7.6 the Committee addresses the test scheme on judicial mediation operated in Norway, as well as the evaluation undertaken of such scheme. It is pointed out that the evaluation shows that such test scheme has proved a most positive addition to the Norwegian procedural system, and that such evaluation confirms that the scheme should be established as an integrated and permanent part of the procedural system

The main elements of a permanent judicial mediation scheme are discussed in section II.7.7. Many of the rules proposed by the Committee are in accordance with those used in the test scheme, but a need for some changes has been identified. The Committee underscores the importance of also using mediators who are not court judges, and proposes that panels of special judicial mediators be affiliated with the courts.

2.2.8 The roles and functions of the various courts in civil dispute resolution

The roles and functions of the various courts in civil dispute resolution are reviewed in Chapter II.8, in order to highlight the relevance of such roles and function for procedural rules. Section II.8.2 identifies the relation between procedural rules, on the one hand, and administrative and structural aspects of the courts and their activities on the other hand. Although the Civil Procedure Committee under its terms of reference is not charged with focusing on the structural aspects of the courts, it is underscored that it is important not to loose sight of the interconnection between procedure, structure and administration.

The various types of courts, from the Conciliation Boards to the Supreme Court, are reviewed in sections II.8.3 to II.8.6.

The Committee is proposing that the Conciliation Boards be maintained as important mediation bodies. The Conciliation Boards will continue to pass a number of judgements as part of the enforcement of claims, and they will also in some cases be able to determine disputes.

The Committee concludes as follows with respect to the Municipal Courts in section II.8.4: «If these elements are brought together – the Municipal Courts as the ordinary courts of first instance irrespective of the complexity and importance of the case, the increased caseload in the form of, amongst other things, cases falling within the scope of small claims procedure as a new and in practise often difficult category of cases to deal with, more cases being ruled on by the Municipal Courts without review by upper-level courts, as well as the requirements as to efficiency and competence – the importance of the Municipal Courts as a «first line of defence» in civil dispute resolution is underscored. The Municipal Court is the backbone of the Norwegian court system.»

In respect of the Courts of Appeal the Committee points out by way of a summary in section II.8.5 that the Courts of Appeal shall be an appellate court only. The appeals system and the proceedings before the Courts of Appeal shall ensure the quality of administration of justice. It shall promote adherence to due process of law both on a general level and in respect of individual parties.

In respect of the Supreme Court the Committee has stated that its main purpose is to contribute to the clarification, unity and development of law. Such functions should be the focus for the drafting of the procedural rules, see section II.8.6.

2.2.9 Important procedural rules in respect of the various types of courts, with the emphasis on the proceedings before the Municipal Courts

The purpose of the discussion in Chapter II.9 is to provide an overview of important features of the new processing rules within civil procedure, with an emphasis on the Municipal Courts. It is stressed that such an overview will have to be limited and selective. The procedural rules the Committee has focused on are: active management of cases, mediation and judicial mediation, efficiency and swiftness, more clarification during the course of the preparation of the case, oral proceedings, direct presentation of evidence, scope for written and indirect contributions, and the mechanics of the main hearing and the appeal hearing.

A separate section, II.9.10, is devoted to the Municipal Courts as fast-track courts, and the coordination of the processing of the main claim with the processing of a claim for temporary injunction, attachment etc. The Committee is of the firm opinion that the procedural rules should allow for coordinated processing of a claim for provisional security and the main claim when practicable in terms of available time and no other weighty concerns suggest otherwise. The Committee presents proposals for new sections 14-3 A and 15-3 A of the Enforcement Act.

2.2.10 The proceedings before the Conciliation Board

In Chapter II.10 the Committee analyses various aspects of the proceedings before the Conciliation Board in considerable detail. By way of introduction the scope provided by the terms of reference for assessing the Conciliation Board system is explained. The current Conciliation Board system is briefly explained. A historical overview is provided as well as an overview of statistical information on the operations of the Conciliation Boards. The Committee looks at the available reform proposals of relevance to the Conciliation Boards. Systems in other jurisdictions are reviewed, and the Committee then addresses the long-standing debate on Conciliation Board proceedings, including discussions as to the scope of the authority of the Conciliation Boards for passing judgements.

The factual basis available to the Committee in preparing its proposals is reviewed in section II.10.8. It is pointed out that the Committee has carried out two studies of the Conciliation Board system. One of these is a study of users focusing on parties and their representatives who have had cases dealt with by the Conciliation Boards. Such study has been carried out be the firm rh Knoff AS, represented by organisational psychologist Richard H. Knoff. The other study is a quality study of judgements passed by the Conciliation Boards in disputed cases. The judgements analysed have been compared to the formal requirements for judgements as set out in sections 144 to 146 of the Dispute Act of 1915, as well as the requirement for grounds to be given in respect of judicial rulings which forms part of the entitlement to a fair hearing pursuant to ECHR, Article 6(1). The members of the Committee have by attending meetings in various Conciliation Boards tried to obtain an impression of their activities and proceedings.

In section II.10.9 the Committee explains its views on the role of the Conciliation Boards in the administration of justice. It is the opinion of the Committee that the Conciliation Boards should continue to remain an important conciliation body, but the Committee does not see that it would be correct or that there is a need for conciliation in the Conciliation Board to remain a mandatory requirement for bringing legal action before the Municipal Courts. Voluntary conciliation should strengthen the role of the Conciliation Boards as conciliation bodies, by contributing to a case profile exhibiting improved scope for real results through conciliation. Voluntary conciliation before the Conciliation Boards would also offer the best interface with other dispute resolution facilities, as well as with the rules on judicial mediation and small claims procedure before the ordinary courts.

The authority of the Conciliation Boards to pass judgements is discussed in detail. General concerns and human rights requirements are pointed out. It is the conclusion of the Committee that the Conciliation Boards should have authority to pass judgements, provided either that both parties consent to such judgement being passed or that the prerequisites for passing judgement by default are in place. The Conciliation Board should furthermore have authority to pass judgement provided that the respondent in a case concerning a claim for the payment of money shall not have raised any objections to the claim other than inability to pay or other objections which are obviously irrelevant. The implication is that the Conciliation Boards will not have authority to pass judgements in case of a real dispute. One of the members of the Committee is of the opinion that the Conciliation Boards should have authority to pass judgements also in disputed cases where the amount in dispute shall be less than twice the base rate of the National Insurance system.

The Committee is also discussing the formulation of the procedural rules applicable to the Conciliation Boards. Considerable weight has been attached to preparing a set of simple and clear rules for such proceedings.

2.2.11 Small claims procedure

In section II.11.1 the Committee addresses the need for a small claims procedure before the Municipal Courts. Such small claims procedure is necessary for «ordinary men and women» to have access to proper processing of legal disputes of the type that many people will encounter, e.g. in the context of sale and purchase of houses and apartments or renovation of same etc. The current court procedure is too expensive and complicated for this type of dispute. The Committee looks at various ways of resolving small claims, and also describes small claims procedure in some other jurisdictions.

Important concerns respecting and elements of small claims procedure are discussed in section II.11.8, and conclusions are presented in respect of some central issues in section II.11.9. It is the view of the Committee that a small claims procedure should be introduced for cases in which the amount in dispute is less than twice the base rate of the National Insurance system. It is discussed whether the threshold should be lower, e.g. equal to the base rate of the National Insurance system. The Committee points out that for disputes in the interval between one and two times the base rate of the National Insurance system it is very often the case that the total procedural costs exceed the amount in dispute. This is unacceptable as a system. The small claims procedure is designed to provide simpler, faster and more cost-effective processing than is available for cases subject to ordinary procedure. The provisions on costs are somewhat different from those applicable to ordinary procedure. Compensation for expenses relating to legal assistance – advocates – is limited to 25% of the amount in dispute. This ensures legal assistance which is in proportion to the importance of the dispute.

2.2.12 Review of judicial rulings. Appeals

In sections II.12.1 and II.12.2 the Committee analyses various review scenarios as well as so-called ordinary recourse and extraordinary recourse. The current recourse system is addressed briefly, and references are made to recourse systems in some other jurisdictions.

Human rights requirements concerning recourse, are discussed in quite some detail, see section II.12.5. By way of introduction it is pointed out that no right of review may be deduced from either of ECHR or ICCPR. As a starting point a state is thus able to choose freely whether, and, if applicable, to what extent, recourse against a judicial ruling should be available. Another general observation is that to the extent recourse is made available, the ruling of the court of recourse shall also have to be based on proceedings in accordance with ECHR, Article 6(1).

To the extent that Article 6(1) is applicable to seeking recourse, the point of departure must be that it imposes the same requirements as in respect of the proceedings before the court of first instance. The litigation must, however, be seen as a whole. The question is thus whether the relevant party has had a fair trial overall. If the appellate court may review an assessment of evidence made on the basis of direct presentation of evidence before the lower court, ECHR, Article 6(1), will in many cases imply that oral proceedings and direct presentation of evidence is required before the appellate court as well.

In section II.12.6 the Committee discusses which rulings should be open to review. It is pointed out that there should be significant limitations on the access to review both in respect of rulings as to the merits of the case and rulings relating to procedural matters.

Section II.12.8 contains a separate discussion of whether review of rulings on procedural matters shall be available on a freestanding basis, or only as part of a review of the ruling on the merits of the case. The conclusion of the Committee is that there should be no general rule to the effect that rulings on procedural matters may only be reviewed in the context of a review of the judgement or interlocutory order to which they relate.

The review should be a review only and not – without it being required for purposes of the review itself – imply the case being processed anew. This is an important argument from the point of view of the Committee. It is necessary for the appeal process to focus on the subject matter of the appeal only, see section II.12.9.

Whether multiple reviews should be available is discussed in section II.12.10. It is the opinion of the Committee that review, as a main rule, should only be available once. Review at a third level – the Supreme Court – should normally be reserved for cases where there is a need for clarification of the law in a more general sense. In accordance with what is highlighted by the Committee in various contexts within the report, it is also pointed out that the entitlement to review and the procedural rules applicable thereto should be rooted in the purposes and functions of the courts in the administration of justice

In section II.12.12 the Committee proposes that there be only one ordinary means of recourse, called appeal. Such means of recourse will serve the needs which in the current system are attended to through appeal and interlocutory appeal. It is the view of the Committee that the procedural requirements relating to review may be encompassed in a fully satisfactory manner through only one ordinary means of recourse. The procedural rules will exhibit sufficient flexibility for simple issues to be dealt with in a simplified manner, as well as for important issues to be dealt with more thoroughly.

However, unlike the set-up under the current legislation, the Committee suggests that there be one set of rules for appeals brought before the Courts of Appeal and a different set of rules for appeals brought before the Supreme Court. This should, amongst other things, highlight the special provisions applicable to appeals brought before the Supreme Court, see section II.12.14.

2.2.13 Appeals to the Supreme Court

Section II.13 is devoted to a discussion of appeals brought before the Supreme Court. Section II.13.1 discusses the role of the Supreme Court in the administration of justice. Reference is made to the fact that a main purpose of the Supreme Court is to contribute to the clarification, unity and development of law. It is important that the rules on selection and processing be designed with this in mind.

The functions of the Appeals Committee of the Supreme Court under the Dispute Act of 1915 are discussed subsequently. It is pointed out that the Appeals Committee serves two functions in respect of civil procedure. One of these functions is to undertake review of certain types of judicial rulings whenever recourse is sought against same. The other function is to select which appeals to approve for processing by a division of the Supreme Court.

The Committee takes the view that two types of amendments should be made to the provisions on what is currently called the Interlocutory Appeals Committee of the Supreme Court. One of these is changing its name to the Appeals Committee of the Supreme Court – or the Appeals Committee – as a consequence of the proposal for having only one ordinary means of recourse, appeals. The other amendment is based on the Committee being of the opinion that there is no reason for the Appeals Committee to be construed as a separate court of justice. The Appeals Committee of the Supreme Court is simply the Supreme Court sitting with three judges, in the same way that a division of the Supreme Court is the Supreme Court sitting with five judges. The proceedings of the Appeals Committee take place, unlike those of the said divisions, in writing. It is, in any case, difficult to see how this alone should give rise to a need for the Appeals Committee to constitute a separate court. What may, however, be convenient is to apply the term Appeals Committee of the Supreme Court when referring to the Supreme Court sitting with three judges. Applying this terminology should simplify specification of which rulings should be made by three judges and – by way of contrast – which rulings should be made by five judges.

The Committee takes the view that the system of refusal applicable to appeals to be brought before the Supreme Court should be replaced by a system of consent, see section II.13.3. A system based on consent would match that applicable to appeals relating to criminal cases pursuant to section 323 of the Criminal Procedure Act, and would also be in line with the established fact that refusals of appeals to be brought before the Supreme Court in civil cases are normally pronounced pursuant to section 373, third paragraph, item 4, of the Dispute Act of 1915.

In section II.13.4 the Committee engages in a relatively thorough discussion of whether the Supreme Court shall have authority to review not only the processing of the case by the Courts of Appeal and their application of law, but also their assessment of evidence. It is the conclusion of the Committee that the system established by the Dispute Act of 1915, whereby the Supreme Court has authority to assess evidence, should be upheld.

In section II.13.5 the Committee discusses whether to allow for direct presentation of evidence before the Supreme Court. Also in this respect the Committee concludes that the system in place under the current rules should be maintained – indirect presentation of evidence, with the exception of evidence from experts.

Issues relating to the composition of the Supreme Court in the various appeal cases are raised in section II.13.6 on the basis of the main purpose of the Supreme Court being to contribute to the clarification, unity and development of law. It is pointed out that the more judges participate in each ruling, the more effective such ruling will be as a binding precedent. The Committee takes the view that the consequences of converting to a system of only one division, whereby all judges would participate in the processing and adjudication of all appeals brought against judgements, would be too far-reaching in terms of the number of cases that could be accommodated by the Supreme Court. What should be an option, however, is for the Supreme Court to sit in a so-called extended division, which ought to include eleven judges. Extended division should be an alternative in respect of some of the cases dealt with in plenary today, and should also be available when processing certain other particularly important cases. The option of hearing a case in plenary should only be available in that very limited number of cases of absolute extraordinary importance.

2.2.14 Res judicata

Section II.14.1 starts out by explaining the concept of res judicata. Res judicata, as applied herein, signifies the quality of a judicial ruling that it provides a final and binding solution to the legal issue which forms the subject matter of the case.

The judgement cannot be challenged through ordinary means of recourse. This is the formal aspect of res judicata, as applied herein. The substantive aspect of res judicata encompasses two perspectives. The defensive perspective implies that a new case between parties relating to a claim which has been determined by was of an unappealable final judgement shall be summarily dismissed. The offensive perspective implies that the judgement is binding and should be adopted by the court without it being reviewed on its merits if the same legal controversy arises as a theme in a subsequent action between the same parties, which also relates to other issues. The rules relating to res judicata are contained in a limited number of brief provisions. Res judicata does, however, give rise to a number of complex demarcation issues, and the Committee has chosen to provide a thorough account of applicable law in section II.14.2, which according to the proposal of the Committee will remain unchanged.

A theme explored in depth by the Committee is the potential relevance in terms of res judicata of assumptions, on which a judicial ruling is based, turning out to be incorrect. This may be of particular relevance if the court in its judgement has made assumptions as to the probabilities of various future developments materialising, e.g. in cases involving damages based on the loss of future income. The predominant principle must be that a new action should not be allowed. The Committee takes the view that amendments by way of special provisions as to res judicata under such circumstances should not be introduced. To the extent that allowing revision of judgements on the basis of changes to the factual assumptions made is to be solved through procedural means, it is the opinion of the Committee better to do so through the provisions on reopening than through specific provisions on res judicata, see sections II.14.2 and II.14.4.

Another question discussed thoroughly by the Committee is what effect the ruling in a criminal case should have in terms of res judicata on a subsequent civil case in which the theme of the criminal case is relevant. Recent precedents and the implications of the presumption of innocence set out in ECHR, Article 6(2), are explored. The conclusion of the Committee is that it is not desirable to propose limitations on the right of the victim to bring his claim against the alleged perpetrator before the courts in a separate civil action. Such limitations would constitute an unacceptable weakening of the legal status of the victim, se sections II.14.2 and II.14.4.

2.2.15 Reopening

Review of an unappealable final judgement is only available to a very limited extent. Such ruling may normally only be challenged by the extraordinary means of recourse, reopening, which under the Dispute Act of 1915 implies renewed processing of the case before the same court. The Committee finds it necessary to maintain such means of recourse, while amending its Norwegian language designation from «gjenopptakelse» to «gjenåpning», see section II.15.1.

Current law and various reform proposals are discussed in section II.15.2.

The assessment of the Committee is included under section II.15.6.

The Committee is of the view that applications for the reopening of civil cases should continue to be dealt with by the ordinary courts, and not by a separate body charged with handling such cases. The issue of reopening of rulings made by the Supreme Court should continue to be dealt with by the Supreme Court, and that the ruling of the Supreme Court in respect of such issue may be made by the Appeals Committee.

The question of whether the ruling on reopening should be made by the same court, a coordinate court, or the court above is discussed. The conclusion is that reopening should take place before a coordinate court.

The Committee finds that the scope of reopening as a means of recourse, should in the main be the same as under sections 405 and 415 of the Dispute Act of 1915. As a general observation it is pointed out that the prerequisites for reopening of an unappealable final judgement have to be strict, with reopening mainly limited to exceptional cases in which inability to seek recourse would cause offence.

There are two main types of errors which may constitute grounds for reopening. Firstly, there are procedural errors and other errors relating to the administration of justice. No major changes are being proposed to the rules under the Dispute Act of 1915 in this respect. Secondly, reopening may be grounded on errors as to the ruling itself. It is the opinion of the Committee that the approach of section 407, first paragraph, no. 6 of the Dispute Act of 1915 is too strict, inasmuch as it requires that new information constituting grounds for reopening, when compared to the materials previously available in relation to the case, shall have to imply with absolute certainty that the ruling be amended. The Committee is of the view that a high level of probability in such respect should suffice.

Current law does not allow for reopening on the basis of subsequent events, but there appears to be an opening, albeit extremely limited, for bringing a new action. The Committee points out that the need for a review on the basis of subsequent events leading to the assumptions on which a ruling was based being significantly undermined, may be accommodated in two different ways. One alternative is to introduce a provision allowing for reopening. The other alternative is to try to identify specific areas of the law within which there may be a need for such revision, and provide more detailed rules on the prerequisites for review. The Committee has decided that the latter approach is preferable.

Two sets of time limits must be observed in order to obtain reopening of a case. Firstly, there is a relatively short time limit for submitting an application for reopening after the party has become aware of the circumstances which form the basis for reopening of the case. Under section 408, first paragraph, of the Dispute Act of 1915 such time limit is three months. Secondly, there should be an overall maximum time limit for requesting reopening. Under section 408, second paragraph, of the Dispute Act of 1915 such time limit is currently 5 years. The Committee is proposing that the former time limit be extended to 6 months and the latter to 10 years.

2.2.16 Evidence

By way of introduction section II.16.1 explains the relevance of evidence and evidence provisions in civil procedure, and some basic precepts on which such provisions are based. Human rights implications, based on ECHR in particular, are briefly reviewed in section II.16.2, and reference is otherwise made to the discussion under section II.4.3.

The Committee examines the principle of unrestricted evaluation of evidence in section II.16.3. Requirements pertaining to evidence are explained, and there is a discussion of the relevance of ambiguity of proof as well as burden of proof. The right of unrestricted presentation of evidence and its limitations are discussed in section II.16.5. It is emphasised that even though the main rule is a right of unrestricted presentation of evidence, there has to be certain limitations. The Committee briefly touches on the general background to the rules on evidence prohibitions and evidence exemptions, see section II.16.5.

A number of jurisdictions have a procedural system involving what is labelled discovery or disclosure, see section II.16.6. Somewhat imprecisely these may be described as addressing clarification of, and access to, evidence during the course of the preparation of the case. The Committee provides a rather detailed account of rules of this type, and broaches the issue of whether something similar should be introduced in Norway. The conclusion of the Committee is that there is no basis for doing so. Such a system would sharply contradict more weighty concerns suggesting the need for more effective – hereunder cost-effective – processing of cases. It is pointed out, however, that the system of discovery, which is mostly to be found within Anglo-American law, does attend to important concerns. It ensures that a party will have access to all evidence possessed by the opposite party, and thus facilitates preparation of his own presentation of evidence. The Committee takes the view that it is important to consider whether such concerns, at least to some extent, may be attended to in a less elaborate manner, which does not inflate costs significantly and does not result in other negative effects.

In section II.16.9 the Committee focuses on whether there is scope for relaxing the current prohibition on so-called extra-judicial statements as set out in section 197 of the Dispute Act of 1915. The Committee is of the opinion that this both is and should be possible, provided that concern for the adversary principle is attended to in a proper manner.

2.2.17 Joint actions and actions with a group element. Class action

Section II.17.1 introduces the discussion of this theme by pointing to the need for, and the appropriateness of, several parties being affected by an action, state, public decision etc. in the same manner being able to act jointly – collectively – or at least together with some of the others affected in the same way. Various methods of achieving this are mentioned.

In section II.17.2 the Committee addresses so-called class actions. There is no unequivocal and universal definition of class action. Its main element is that a legal action is pursuant on behalf of or against a defined group of natural or legal persons, who are affected in the same or substantially in the same manner. The class acts as an entity in respect of all joint issues. The class action is pursued by a representative of the class. The individual class members do not have to act in the case.

It is pointed out that a fundamental distinction within class action is whether the rulings become binding on all those concerned without a requirement that they join, or register, in order to be bound. If one is bound without registering, the principle of «opt out» applies. If there is a requirement for actively joining the action, the principle of «opt in» applies.

In section II.17.3 the Committee surveys foreign, particularly United States, law. The background for this is the United States having had extensive experience of class actions for several decades, while similar arrangements in other jurisdictions are much more recent. The American experience illustrates problems occurring during class action, in particular those based on «opt out». In section II.17.4 the Committee moves on to address the proposal for class action put forward in Sweden by way of the Swedish report SOU 1994: 151.

In section II.17.5 the Committee discusses which forms of joint actions or action with a group element should be chosen. One of the questions raised is whether there is a need for class action. The conclusion of the Committee is that rules on class action should be introduced in order for the existing need for joint action to be served in a better way. It is pointed out that class procedure may be designed in many different ways, and that the conclusion to the effect that a class action scheme should be introduced will have to be viewed in relation to the main elements of the applicable procedural arrangements.

The Committee discusses which main elements class action should comprise, hereunder who should be able to bring a class action. The natural and legal persons affected in such a way that they would be entitled to raise their claims in the form individual lawsuits should clearly have such right, but the Committee is also of the opinion that organisations and associations should have some scope for initiating class action on behalf of others.

Various cost-related issues applicable to class actions are discussed. It is the view of the Committee that the ordinary provisions on costs should be the starting point also in respect of class action. This implies that an important question becomes who should have the entitlement to, as well as the liability for, costs on behalf of the class. The Committee has concluded that the only practicable solution is for external liability to be attached to the class representative. The class representative will in most cases be able to claim a refund from the class members, but then on the basis that the liability and maximum cost-related risk of the class members be determined at an early stage in the process.

The Committee addresses from a wide angle the question of whether class action should be based on the principle of «opt out» or on that of «opt in». As mentioned, the problem in such respect is whether all those affected shall be bound by the ruling, assuming that they have not deregistered from the class action, or active registration should be a prerequisite for being bound. The conclusion of the Committee is that the absolute main rule should be based on the principle of actively joining the class action as a requirement for anyone to be bound. The proposal does, however, allow for class action based on the principle of deregistration – «opt out» – on a limited scale. The court may on application allow for such form of class action, provide that the individual claims are not individually viable – i.e. it is assumed that on it cannot be expected that legal action would be taken on the basis of the costs involved. It is a further requirement under the proposal that there are no circumstances in respect of the individual claims which necessitate separate processing.

2.2.18 Judicial review of administrative decisions

In Chapter II.18 the Committee discusses certain general issues relating to judicial review of administrative decisions. Among these is the question, addressed in section II.18.2, of whether the new Dispute Act should include a separate Chapter on cases relating to actions taken by the public administration. The answer given is no. The Committee points out that there is no reason to keep most of the provisions of Chapter 30 of the Dispute Act of 1915.

In section II.18.2 the Committee deals with some provisions of the draft which are of particular relevance to the review of administrative decisions. In section II.18.4 the discussion concludes with a general and rather exhaustive discussion of whether institution of legal proceedings should have suspending effect. The conclusion of the Committee is that the new Dispute Act should not regulate such issue. The needs for clarity and consistency are better served by relying solely on the provisions of Chapter 15 of the Enforcement Act.

2.2.19 Other special procedural forms. Focus on judicial review of administrative decisions relating to coercion

As an introduction the Committee in section II.19.1 mentions the special procedural rules set out in Part V of the Dispute Act of 1915, and makes a few general remarks concerning said rules. A number of special procedural rules within other pieces of legislation are also mentioned.

The question of whether such special rules are required, or could be replaced in full or in part by general provisions on the new Dispute Act, is discussed. The Civil Procedure Committee concludes that there is a need for special procedural rules in connection with the substantive provisions of some statutes. Incorporation of such rules into the general provisions of the new Dispute Act would necessitate a number of exceptions and special provisions, and would thus make the Act more complex. What is Part V of the current Act would have to be elaborated to quite some extent, without the Committee seeing this as contributing to improved clarity or consistency of the rules. The rules in question are for the most part closely intertwined with the particular type of case. There is limited scope for generalisation, at least without loosing the benefits of having special rules.

Judicial review of administrative decisions relating to coercion is discussed separately and in quite some detail in section II.19.2. By way of introduction it is pointed out that this is an area within which adherence to due process of law is a particularly strong concern, which will obviously have implications for procedural rules. Current law, i.e. Chapter 33 of the Dispute Act of 1915 and provisions included in a number of administrative statutes, is reviewed.

The Committee undertakes a detailed discussion of the human rights requirements posed by ECHR and other main conventions.

In its evaluations the Committee points out that there is a clear need for special procedural rules for cases concerning coercion. The new Dispute Act should include a separate chapter on such cases. The scope of such chapter should in the main be similar to that which currently applies to Chapter 33 of the Dispute Act of 1915.

The relationship between the courts of justice and the County Boards is discussed from the point of view of which level of court should review the decisions of the Boards. It is the firm conclusion of the Committee that such cases be tried before the Municipal Courts as courts of first instance.

As far as the composition of the Municipal Court is concerned, the Committee is proposing that the court as a main rule should sit with two lay judges. It should be up to the court to decide whether one or both lay judges should be experts. In case of appeals brought before the Court of Appeal the court should in addition to the professional judges sit with two lay judges, who may be either experts or «regulars».

The Committee debates whether joinder of other claims in a case pursuant to Chapter 33 of the new Dispute Act should be permitted, for instance a claim for damages. It is the view of the Committee that such joinder should not be available.

The Committee takes the view that there is cause for having a special provision on anticipatory effect applicable to judgements in cases concerning coercion. This is of particular relevance to cases concerning deprivation of liberty, where ECHR, Article 5(4), requires that the person concerned be released if the court find that the deprivation of liberty is unlawful. This implies a presupposition of anticipatory effect of the judgement as the main rule. The Civil Procedure Committee does, however, take the position that such rule should not be limited to cases concerning deprivation of liberty only.

Under current law it is somewhat unclear whether renewed administrative processing of a case is a prerequisite for bringing a new action before the courts. The Civil Procedure Committee is of the view that a general condition of this nature should apply, and it is suggesting that this be made explicit in the Act.

2.2.20 Costs, compensation for costs and cost level

In Chapter II.20 the Committee looks at a number of issues relating to procedural costs. Current provisions on costs are explained in section II.20.2.

In section II.20.3 the Committee broaches the question of what should be included in the provisions on costs. It is concluded that the obligations of the parties concerning payments to the court should be regulated by the Court Fee Act, and not by the Dispute Act.

The question of whether the new Dispute Act should govern the relationship between an advocate and his client is also raised. The conclusion of the Committee is that it should not.

The issue of when a party should be able to claim compensation for costs from the opposite party is discussed in section II.20.5. It is proposed that the current main rule of the party having won the case being awarded costs be kept. However, it is also suggested that costs may be awarded in some cases where, although a party cannot be said to have won the case, he has succeeded on important counts. It is also mentioned that it may under special circumstances be appropriate to award costs irrespective of the outcome of the case.

In a separate section, cf. II.20.6, certain special types of cases or procedural situations, and issues of costs related thereto, are discussed. Two main questions are raised. Firstly, whether there should be special rules in respect of cases where costs turn out to be particularly high due to the action involving matters of principle, and secondly, whether there should be special provisions on costs in consumer disputes. On both questions the Committee concludes that although there are special concerns relating to entitlements and obligations concerning costs as well as relating to the level of costs in respect of which compensation should be awarded, such special concerns can be fully accommodated within the framework of the general provisions on costs.

In section II.20.7 the Committee debates which costs should qualify for compensation. A number of concerns are raised in relation to this issue. An important consideration from the point of view of the Committee is that where it is concluded that a party should be awarded costs, the calculation of compensation should cover the actual costs incurred. There are three main elements to this: (a) only necessary costs should be included, (b) there should be proportionality between the costs and what could be achieved through incurring them, and (c) there should be a restriction concerning particularly expensive assistance.

In section II.20.8 the Committee discusses whether the costs of the parties should in some cases be covered by the public sector. A general liability of the public sector for costs would seem well founded in cases where the courts of justice commit errors which impose costs on the parties. Such errors may relate to the processing of the case or the ruling itself. The conclusion of the Committee is that provisions as to such liability for costs for the public sector should be introduced, and that these provisions should be included in the Dispute Act. The main rule should be that damages should be available only if the costs are incurred as a result of clearly unsound conduct on the part of the court. The State should, however, in the opinion of the Committee also be liable if the court has committed certain more specific errors which imply unconditional setting aside of the ruling made.

In section II.20.9 the Committee engages in a rather thorough discussion of the level of costs in civil actions, and looks at, amongst other things, how such level of costs may and should be influenced by the provisions relating to determination of costs to be compensated.

The question of whether there should be provisions allowing a party to demand provision of security for potential costs he may be awarded in respect of the action is dealt with in section II.20.10. The Committee is unified in proposing a provision which to a considerable extent corresponds to section 182 of the Dispute Act of 1915. Two of the members of the Committee are of the opinion that provision of security should to some extent be a prerequisite for appeal, and they are suggesting a provision based on such view.

Seeking recourse against cost awards is discussed in section II.20.11. It is pointed out that cost awards are important, which suggests that review of such awards should be available.

2.2.21 Judicial rulings and in-court settlements

Issues of principle and other general issues as to judicial rulings and in-court settlements are discussed in Chapter II.21. Current law is reviewed. Human rights implications are dealt with in relation to some important issues, like the requirements as to specification of the grounds upon which a judicial ruling is based. References are made to foreign law, and some issues are discussed quite thoroughly by the Committee. Amongst the issues analysed are: What the rulings should be based on, who the rulings should be made by, deliberations and voting when the court has several members, pronouncement of the ruling, service and notification, requirements as to contents and grounds, performance time limit s and late payments interest. The provisions on rectification, supplementary judgements and reversal, as well as provisions on anticipatory, postponed and overturned enforceability are discussed.

On in-court settlement the first question relates to its procedural consequences, in particular with reference to res judicata. The conclusion of the Committee is that in-court settlements should continue to have the same status in such respect as judicial rulings. Such conclusion is related to the view taken by the Committee on another issue concerning in-court settlement. This is the question of whether the current appeal arrangement should remain in place or be replaced by a system whereby in-court settlements may be contested by way of a lawsuit, in such a manner that the in-court settlement may be revised or struck down on the basis of invalidity pursuant to the rules applicable to revision and invalidity of non-judicial agreements. The conclusion of the Committee is that the latter approach is preferable.

2.2.22 Open court and the right of inspection of materials

In Chapter II.22 the Committee analyses public access to hearings and public inspection of materials – the right of third parties to acquaint themselves with the procedural materials and the processing of the case. The Committee is unified in suggesting that third parties should have the right to inspect procedural materials during the course of the preparation of the case. The proposal does in some cases allow for submission of written materials which are to form part of the basis for ruling on the case. It would, as a matter of principle, be incorrect to prevent the general public from inspecting such materials, unless special concerns suggest otherwise. A majority within the Committee proposes that inspection should be permitted of those written procedural materials which form the basis of the ruling of the court. A minority is of the opinion that such right of inspection should apply to all written submissions, including exhibits.

2.2.23 The Dispute Act and modern information and communications technology (ICT)

It is self-evident that the new Dispute Act should be adapted to modern information and communications technology (ICT), see Chapter II.23. The Committee refers to it being an explicit objective of the Government that electronic communications and the use of networks as infrastructure for interaction shall become as accepted as traditional written communication and documentation. It is also pointed out that modern information and communications technology includes much more than remote communication between parties and the court. Modern technology does for instance provide new opportunities for persons with various types of disabilities to participate in oral court hearings. Technology also provides better tools for active management of cases. It furthermore provides much better access for the general public to those parts of the procedural documents which are open to inspection, to the rulings of the court, etc. Various aspects of these issues are explored and discussed in more detail by the Committee.

By way of summary the Committee points out that electronic communications with and within the courts will bring the courts into line with the method of communication used in the rest of society. It is of importance that the courts and the legal system do not fall significantly behind in terms of communications. This relates to electronic communication of written submissions, exhibits, judicial rulings, etc. It is also pointed out that the method of conducting meetings is in the process of changing in many parts of society. Meetings are to a considerable extent taking place in the form of long-distance meetings. Generally speaking there should be advantages to procedural materials being capable of being compiled in the form of electronic folders. This will also improve the scope for inspection of procedural materials.

2.2.24 The structure of the new Dispute Act

In Chapter II.24 the Committee explains the reasoning behind the structure chosen for the new Dispute Act. In the summary the Committee limits itself to pointing out that it is important that the new Dispute Act be numbered on a chapter-by-chapter basis. The new Dispute Act is a particularly voluminous statute. Numbering all sections consecutively would make it much more difficult for users to get a clear picture of the structure of the Act and to locate relevant sections, when compared to numbering on a chapter-by-chapter basis. For similar reasons the Committee is of the opinion that an overview of the chapters should be inserted by way of introduction, and form an integral part of the Act.

2.2.25 Administrative and financial implications of the new Dispute Act

Administrative and financial consequences of the new Dispute Act are discussed in Chapter II.25.

The proposal would imply a certain reduction in the workload and a modest reduction in the number of cases before the Conciliation Boards, and thus a reduction in their income from court fees.

For the Municipal Courts the proposal would lead to an increased workload and decreased income from court fees. The reason for the decrease in the court fees is that a number of cases will be transfered to the small claim procedure. There would be a certain increase in the number of cases and the responsibilities to be discharged, through the strengthening of the procedural set-up applicable to ordinary procedure.

The workload and court fee income of the Courts of Appeal would be reduced. The proposal of the Committee also includes important changes concerning the Supreme Court, but these should not have material financial or administrative consequences.

Under the proposal all courts would need equipment for long-distance examination. Audio recording equipment would be needed, and data processing equipment would have to be upgraded. As far as the latter is concerned, most expenses will already have been incurred through the planned system for handling cases in the courts

Training programmes would be required for judges in all courts.

2.2.26 Harmonizing between the Dispute Act and the Criminal Procedure Act

In this section the Committee provides a brief sketch of the amendments needed to the Criminal Procedure Act as a consequence of the proposals contained in the draft for a new Dispute Act.

2.3 Part III of the Report – Remarks relating to Individual Chapters and Sections

Part I – Basic provisions for dealing with civil cases Chapter 1. The purposes and application of the Dispute Act

This Chapter contains basic provisions on the application of the Act. Section 1-1 provides a statement of legislative purpose. Paragraph (1) incorporates the main elements of ECHR, Article 6(1). The needs of society in terms of civil dispute resolution are also highlighted. Basic concerns respecting the proceedings have been set out in paragraph (2). Section 1-2 provides a general reservation as to the restrictions imposed by international law. The provisions contained in sections 1-3 to 1-5 govern various aspects of the subject matter of a legal action, the situation in which such subject matter may be brought before the courts through legal action and the identity of the parties to such action.

Chapter 2. Parties, procedural capacity and legal representatives

The Committee has found cause to try to clarify who should have capacity to be a party to a legal action. This is specified in section 2-1. Section 2-2 contains provisions on procedural capacity, which in the main correspond to those of the Dispute Act of 1915. Section 2-3 provides rules on legal representatives. The provisions in section 2-3(4) on the scope for delegation of the authority to act as the legal representative of legal persons are new.

Chapter 3. Counsel and of counsel

Section 3-1 offers a party a general right to be represented by counsel. However, this is only an entitlement available to the party. The party may always choose to represent himself. The exemption from this principle is set out in section 3-2, referring to a situation where a party not represented by counsel is unable to present the case in a comprehensible manner. Section 3-3 sets out rules on who may act as counsel. There are no major changes from the present rules. Section 3-4 is a continuation of sections 46 and 47 of the Dispute Act of 1915, but the option of limiting the authority to represent a party in legal proceedings as counsel to cover only specific procedural acts has been eliminated. Sections 3-5 and 3-6 set out rules on the relationship between the actions of the party and those of counsel and on resignation and withdrawal from acting as counsel. The provision on of counsel currently codified by way of section 51 of the Dispute Act of 1915 is in the main continued through section 3-7 of the new draft.

Chapter 4. Substantive and local jurisdiction

Section 4-1 is a referral provision specifying which sections determine the substantive jurisdiction of the various courts.

The special remarks on this Chapter and its rules include a rather detailed discussion of various aspects of the provisions on local jurisdiction – i.e. venue.

The Committee has found cause to include, in section 4-2, a provision on international venue. The ordinary venue continues to be determined by his habitual residence, cf. section 4-3. The Committee has not found cause to propose any mandatory venue in respect of cases related to real property. Section 4-4 sets out provisions on voluntary venue, cf. sections 23 a to 35 of the Dispute Act of 1915. The voluntary venue pursuant to section 4-4(8) in cases directed at the State or county administrations is an innovation. Rules on agreements respecting venue are set out in section 4-5. An action having been brought before a court not having local jurisdiction shall not lead to summary dismissal of the case, provided that there is another court in Norway having local jurisdiction over such action. The action shall instead be referred to such other court, cf. section 4-6.

Chapter 5. How the court relates to the procedural steps of the parties. Administration of cases and guidance.

This Chapter consists of basic rules on the processing of the case by the court.

Section 5-1 regulates which parts of the procedural materials the court should and could base its ruling on. Section 5-2 contains the general rules on the extent to which the court is bound by the procedural strategy of the parties. The said provision applies to cases where the right of disposition of the parties is unrestricted. Section 5-3 governs those situations in which public interest considerations necessitate limitations to the right of disposition of the parties in respect of the legal action.

The right and obligation of the court to guide the parties, partly in respect of the processing of the case and partly in respect of its substantive aspects, are essential to quality procedure. The relevant rules are set out in section 5-4.

Active administration of the case by the court at all stages of the action is in the view of the Committee a prerequisite for a well-functioning procedural system. Section 5-5 provides rules on the administration of the case by the court – during the preparation of the case, at court sittings and during deliberations in which several judges participate. The provision grants the court general authority to set time limit s and to determine such issues as are required for dealing with the case. Section 5-6 sets out rules on intervention in case active administration pursuant to section 5-5 is not taking place. This is a new and very important provision. It gives the administrator of the court the right and obligation to intervene against insufficient administration, partly of his own accord and partly at the request of a party. The issue of intervention may also be brought before the court above.

Part II - Obligations prior to bringing legal action. Non-judicial and judicial mediation Chapter 6. Obligations prior to bringing legal action. Non-judicial mediation

The common denominator for these rules is that they relate to various aspects of the rights and obligations of the parties prior to bringing legal action. They are designed to promote understanding of – and ideally a culture focusing on – the benefits of amicable settlement of cases, if necessary through non-judicial mediation. Dispute resolution before the courts should preferably only take place after the parties in vain have made a serious attempt at resolving the dispute by other means.

The general obligations pursuant to sections 6-2 to 6-4 may be deduced indirectly from some of the provisions in the chapter on costs, cf. the references made under the remarks to said sections 6-2 and 6-4. These obligations are in many ways rather obvious. It is, however, of importance to make them explicit within a regulatory framework at the stage in the development of a dispute where they belong, to emphasise to the parties that there are obligations to be fulfilled also at such stage.

Within certain areas of law there are special provisions which partly have the purpose of preparing the ground for improved clarification of the dispute and partly are there to encourage exploring the possibility of an amicable settlement. An example is section 61 of the Working Environment Act on disputes respecting unfair dismissal of employees. In such case the statute containing such more specific provisions will of course take precedence. It may be added that in such cases the general duties which may be deduced from part II of the Chapter will have been well looked after through the relevant special provisions of the statute relating to a specific area of law.

Part III of Chapter 6 addresses non-judicial mediation. The parties may agree to undergo such mediation, cf. section 6-5. One alternative for the parties in such case is to request that the Municipal Court nominate a mediator, cf. section 6-6. Section 6-7 sets out provisions on the mediation process and section 6-8 governs the remuneration of the mediator.

Chapter 7. Mediation and judicial mediation before the ordinary courts

The Chapter is divided into three main parts, I – providing rules on amicable settlement and mediation, II – addressing judicial mediation and III – relating to in-court settlements.

Section 7-1 confirms that the court shall be aware of the possibility of having the legal dispute resolved amicably. Section 7-2 sets out rules on mediation. Mediation should be distinguished from judicial mediation. Judicial mediation have certain consequences which distinguish it from mediation, amongst which is the ability of the judge to continue to preside over the case if the judicial mediation does not lead to an amicable settlement.

One of the provisions on judicial mediation, section 7-4(4) on panels of judicial mediators, should be noted. It is of importance that the courts gain access to the resource represented by such panels, and that judicial mediators from such panels be utilised.

Section 7-5(6) is important. In-court settlement may be entered into in connection with judicial mediation, also when the judicial mediator is not one of the judges of the court.

The rules on prohibited evidence and duty of confidentiality are in the main continuations of those practised under the test scheme, although the prohibition and the duty are both made somewhat stricter than under such scheme.

Part III of the Chapter contains rules on in-court settlement. Requirements in terms of formalities and the duties of the court concerning the entering into of a settlement will be much as they are at the moment, cf. section 7-8. Section 7-9 has provisions on in-court settlement during judicial mediation. Section 7-10 implies a major change to the present system requiring that an appeal be brought against an in-court settlement in order for it to be struck down. Under section 7-10 the validity of an in-court settlement will have to be reviewed through a lawsuit. Such lawsuit shall be brought before the Municipal Court in the ordinary manner.

Chapter 8. Proceedings before the Conciliation Board

Chapter 8 contains provisions on the processing of a case before the Conciliation Boards. Its scope is similar to that of Chapter 21 of the Dispute Act of 1915, but the systematic distinction between conciliation and proceedings relating to judgements made in parts I and II of Chapter 21 of the Dispute Act of 1915 has been abolished.

Efforts have been made to present the rules in a simple manner, in line with the fact that they need to be understood and practised by non-lawyers. Ideally one might have wanted to provide an exhaustive set of provisions pertaining to the proceedings before the Conciliation Boards, in order for users to avoid having to study other parts of this lengthy Act. Such a structure would, however, lead to a considerable amount of repetition, and would also imply that Chapter 8 would have to be very elaborate and thus less accessible.

Section 8-1 contains general rules on the responsibilities of the Conciliation Board and its proceedings. The special remarks specify which parts of the new Dispute Act are applicable to the Conciliation Board.

There is an entitlement, but not an obligation, to bring cases before the Conciliation Board.

Section 8-2 specifies which cases may not be brought before the Conciliation Board. Rules on applications for conciliation proceedings and responses are set out in sections 8-3 and 8-4, respectively, while summons and the duty of the parties to attend are dealt with in sections 8-5 and 8-6, respectively.

Section 8-7 has provisions on counsel and of counsel. The majority of the members of the Committee suggest that as a general rule the parties may choose, if they so wish, to be represented by an advocate as counsel. The minority proposal is that advocates can only act as counsel during the preparation of the case.

Provisions on the proceedings are set out in section 8-8, and on public access etc. in section 8-9.

Section 8-10 regulates authority to pronounce judgements. The majority proposal is that the Conciliation Board may pronounce judgement with the consent of both parties, or provided that the conditions for passing judgement by default are fulfilled, or if the respondent in a case concerning a claim for the payment of money does not raise any objections to the claim other than inability to pay or other objections which are obviously irrelevant. A minority of the members of the Committee proposes that the Conciliation Board shall also have authority to pass judgements in cases of a pecuniary nature, if the amount in dispute is less than twice the base rate of the National Insurance system.

Another rule worth mentioning is section 8-13, which to some extent limits the costs that may be awarded. There are dissenting opinions within the Committee as to these limitations.

Provisions on recourse are set out in section 8-14.

Part III – The proceedings in the court of first instance Chapter 9. Ordinary procedure

This Chapter addresses the proceedings before the ordinary court of first instance, which in the vast majority of cases means the Municipal Court. The Chapter is divided into three main parts – I, II and III. These apply to cases to be processed by way of ordinary procedure, thus excluding first and foremost those cases that are to be dealt with pursuant to the rules on small claims procedure in Chapter 10. The provisions of Chapter 9 will, however, to a considerable degree have been made applicable to cases dealt with pursuant to Chapter 10 as well. In respect of cases dealt with through special types of procedure, hereunder class actions and cases dealt with pursuant to Chapter 33, the provisions of Chapter 9 will apply unless otherwise provided in the form of diverging rules.

Part I – section 9-1 – defines the scope of the provisions of the Chapter and which courts are to act as courts of first instance.

Part II - sections 9-2 to 9-11 – governs the preparation of the case.

Part III - sections 9-12 to 9-18 – governs the main hearing.

Chapter 9 is a core chapter of the new Dispute Act. The proceedings before the Municipal Court will and shall be final in respect of most cases brought before the ordinary courts.

The provisions of Chapter 9 will to some extent form a template for the processing of appeals by the Courts of Appeal and the Supreme Court, especially as far as the processing of appeals brought against judgements are concerned. Some provisions of Chapter 9 are applied correspondingly to the chapters on appeal – Chapters 11 and 12. Chapter 9 does also, as previously mentioned, form a template for Chapter 10 on small claims procedure, although Chapter 10 generally aims for simpler and swifter processing of cases.

Chapter 10. Small claims procedure

This Chapter offers a simpler method of dealing with small claims and what will have to be labelled «medium-size» claims. The scope of the provisions is defined by section 10-1. The preparation of the case, cf. section 10-2, and the court sitting, cf. section 10-3, is dealt with in a more simplified manner than is the case with the preparation and main hearing pursuant to ordinary procedure.

The rules on the contents of the judgement etc. have also been simplified, cf. section 10-4. There is a limit on the amount of costs that may be awarded, cf. section 10-5. Provisions relating to appeal are set out in section 10-6. Section 11-12(2) should be noted in this regard.

Chapter 11. Appeal to the Court of Appeal

Under the new Dispute Act appeal is a joint means of recourse for what was labelled appeal and interlocutory appeal under the Dispute Act of 1915. The grounds on which an appeal may be brought will vary with the type of ruling against which the appeal is brought, cf. section 11-3. Section 11-13 is important. The consent of the Court of Appeal is required if the value of the subject matter of the appeal is less than twice the base rate of the National Insurance system.

Under section 11-13(2) an appeal brought against a judgement may be disallowed provided that the Court of Appeal finds that the appeal shall not succeed. There are dissenting views within the Committee on this issue, cf. the minority proposal respecting section 11-13. As far as the provisions on the preparation of the appeal are concerned, reference is made to the parties in some cases being allowed to submit written descriptions as to parts of the factual or legal issues involved in the case, implying that there will in some cases be a combination of oral and written proceedings, cf. section 11-16(3) and (4). The rules on the conduct of the appeal hearing, cf. section 11-18, have been designed to focus such hearing on the grounds for appeal, as opposed to the case as a whole being dealt with anew. There are also some other changes to the procedural rules, although the main aspects of the provisions of the Dispute Act of 1915 are maintained.

Chapter 12. Appeal to the Supreme Court

This Chapter contains special rules on appeals brought before the Supreme Court. Those of the provisions of Chapter 11 which are applied correspondingly are referred to in section 12-3. The possibility of direct appeal from the Municipal Courts to the Supreme Court is upheld in section 12-2. There are some changes to these provisions. Under section 12-5 of the draft, consent will be a prerequisite for the Supreme Court to proceed with appeals brought against judgements. Also before the Supreme Court, and to a greater extent than before the Courts of Appeal, there will be scope for a combination of oral and written proceedings, cf. section 12-10.

Chapter 13. Reopening

There are some changes to this Chapter when compared to the provisions of Chapter 27 of the Dispute Act of 1915. The scope for reopening on the basis of information as to factual circumstances which were unknown at the time of the case being ruled on, has been expanded somewhat under section 13-4. The time limits for requesting reopening have been somewhat extended, cf. section 13-6. The court deciding whether to reopen a case shall, in respect of the Municipal Courts and the Courts of Appeal, be a court which is coordinate to the court which made the ruling, cf. section 13-1(3).

Part V – General provisions Chapter 14. Valuation

The provisions of Chapter 14 will be of more general relevance than the valuation provisions set out in Chapter 1 of the Dispute Act of 1915, as the value of the subject matter in dispute normally will determine whether the rules on small claims procedure shall apply. The provisions will to a large extent correspond to the valuation provisions of the Dispute Act of 1915. An important change is, however, that the court shall review the valuation provided by the party more thoroughly, cf. section 14-2.

Chapter 15. Joinder

The common denominator of the rules of this Chapter is that they relate to procedural situations which are more complex than a case between two parties respecting one claim. In addition to provisions on joinder in sections 15-1 to 15-5, section 15-6 addresses splitting the proceedings and the adjudication, section 15-7 contains rules on consolidation of cases for joint processing and section 15-8 deals with intervention. The Committee has found cause to distinguish between two different forms of intervention, with the procedural rights of the intervener differing somewhat between the two forms. It is proposed that arrangements for third-party notice be maintained, cf. section 15-9.

Chapter 16. Written submissions

The rules on written submissions are somewhat simplified in comparison with those of the Dispute Act of 1915. An important change is that written submissions, including exhibits, as a main rule shall be submitted electronically to the court, cf. section 16-3.

Chapter 17. Court sittings and court records

Chapter 17 is divided into two parts. Part I addresses the actual court sitting, including the summons for such sitting. Part II addresses securing of evidence as to what took place at the court sitting.

Chapter 17 sets out new rules allowing court sittings to be held by way of long-distance meetings. This may apply to sittings during the course of the preparation of the case, but may also to some extent be of relevance to court sittings which will form part of the basis for ruling on the case.

A considerable reinforcement of the securing of evidence as to the contents of the statements made at the main hearing is being proposed. This shall primarily take place by way of audio or video recording, cf. section 17-9. However, statements made at the main hearing may be entered in the court record if no audio nor video recording is made, cf. section 17-10.

Chapter 18. Right of inspection

Chapter 18 of the draft statute governs two issues. Firstly, there is the right of the parties to inspection of the documents relating to the case and the rulings of the court. Such right is being maintained in line with section 135, first paragraph of the Dispute Act of 1915, cf. section 18-1 of the draft. Secondly, the right of the general public and other third parties to inspection of the documents relating to the case and the rulings of the court is regulated, cf. sections 18-2 to 18-6. The draft implies a significant expansion of this latter right of inspection. The main rule according to the draft would be a right of inspection not only of the rulings of the court, as offered by the current system, but also of materials presented to the court to the extent that these may form part of the basis for the ruling of the court. Two of the members of the Committee take the view that the right of inspection should be expanded further to encompass all written submissions, including exhibits.

The proposed main rule as to the right of inspection of the general public marks a departure from the current starting point, whereby there is no right of inspection unless permitted by the court and the right of inspection in reality is at the case-by-case discretion of the judge. The proposed main rule is that there is a right of inspection of all materials on which the court may base its ruling, unless there is authority for refusing inspection. The assessment to be made is under the proposal tied to certain conditions specified in the Act. If the court is to assess whether there is a right of inspection, the judge will have to keep to the criteria prescribed by the Act. There is no room for the judge to, at his own discretion, make other assessments than those specified by the Act. By the consent of the person entitled to be protected from inspection, such inspection may, however, be permitted beyond the confines otherwise made explicit in section 18-2, cf. sections 18-3 and 18-4.

Chapter 19. Stay of proceedings

The provisions of the new Dispute Act on stay of proceedings govern postponement of the further processing of a case. The consequences of stay of proceedings are specified in section 19-1. The prerequisites for stay of proceedings are set out in sections 19-2 to 19-4. As a whole these provisions amount to a somewhat expanded scope for stay of proceedings than is the case under current law.

Chapter 20. The consequences of legal action etc.

This Chapter addresses the consequences of bringing legal action, as well as the consequences of voluntarily abandoning such action. Provisions respecting these matters are currently set out in Chapter 5 of the Dispute Act of 1915. The other provisions of the said Chapter 5 have been included in other chapters of the draft new Dispute Act, with more or less the same substantive contents. The Committee has not found cause to propose any general rules on procedural rights and obligations in connection with transfer of the subject matter in dispute, see however sections 15-2(5) and 15-3(2).

Chapter 21. Judicial rulings

Chapter 21 contains general rules on the types of judicial rulings and their contents, pronouncement and effects. The theme of the Chapter matches that of Chapter 12 of the Dispute Act of 1915 closely. The rules are applicable to all courts and to all rulings, unless otherwise provided by the specific provisions. Some of the exceptions are set out in the provisions on judgements passed by the Conciliation Boards in Chapter 8 and in the provisions on small claims procedure in Chapter 10.

Chapter 22. Negligence during legal proceedings

Chapter 22 addresses the legal effects of various types of procedural errors or negligence by the parties during the course of the processing of the case. The rules address two main categories of negligence.

Inadequate procedural steps are governed by section 22-1. Errors as to the formalities concerning the contents or performance of procedural steps fall within the scope of this section. Examples are writ of summons that do not fulfil the requirements as to contents set out in section 9-2, or which have been submitted on behalf of others by someone not fulfilling the requirements for acting as a legal representative pursuant to section 2-3 or counsel pursuant to section 3-3. The main rule is that the court shall permit rectification of the error by setting a time limit for doing so.

Omitted procedural steps, as governed by sections 22-2 to 22-10 are procedural steps that are taken too late or omitted altogether. There are two sub-categories. One of these is the party missing a court determined or statutory time limit for such procedural step to be taken. The other is the party failing to attend a court sitting where the case is to be processed. Some types of non-attendance result in summary dismissal of the case, or imply that judgement by default may be pronounced. The Norwegian language term proposed for judgement by default under the new Dispute Act is «forfallsdom», while the Dispute Act of 1915 applies the term «uteblivelsesdom». In such case the non-attendance may be repaired through an application for reinstatement. Reinstatement is a new concept including aspects of the provisions on reopening of default judgements in Chapter 24 of the Dispute Act of 1915 and the provisions on reinstatement in Chapter 8 of the Courts of Justice Act.

Other types of errors as to formalities fall outside the scope of the Chapter, although some of these could from a linguistic point of view also be labelled negligence during legal proceedings. As an example, the effects of bringing an action before a court not having jurisdiction pursuant to the rules on venue in Chapter 4 are specified in section 4-6, according to which the court shall refer the case to the relevant court. Non-fulfilment of other requirements for a court to be able to decide a case on its merits may lead to summary dismissal of the case, without application of the provisions of Chapter 22. Some examples are the claimant not having a right of legal action pursuant to section 1-3 the case concerning a claim which is the subject matter in dispute in a separate case, cf. section 20-1, or the case concerning a claim which has previously been ruled on by unappealable final judgement, cf. section 21-13(3).

The rule set out in section 22-1 on inadequate procedural steps applies to all stages of the processing of a dispute by a court, including proceedings before the Conciliation Boards. Most of the provisions on omitted procedural acts in sections 22-2 to 22-10 are, however, not applicable to the Conciliation Board, in respect of which the scope for passing judgements by default, amongst other things, is governed directly by Chapter 8. Reinstatement cannot be requested in respect of negligence before the Conciliation Board pursuant to section 8-14(4), but there is on the other hand unrestricted access to review of the judgement by bringing the action before the Municipal Court. Special reference is made to the comments on section 8-1(3).

Chapter 23. Costs

Section 23-1 defines the scope of the rules. Sections 23-2 to 23-4 determine in which cases a party, in full or in part, may demand compensation for costs from another party. Rules on assessment of costs, specification of costs etc. are set out in section 23-5. Section 23-6 addresses rulings on costs in cases where there are several parties on the same side. Section 23-7 confirms that liability for costs normally lies with the party, with the exception provided by section 23-7(1), second sentence. In those exceptional cases where a claim for compensation for costs may be directed against other persons than the opposite party pursuant to provisions outside Chapter 23 of the new Dispute Act, section 23-7(2) contains rules on the extent to which such claims may be included in the action by way of joinder. Section 23-8 sets out general rules on cost awards. Rules on review are provided by section 23-9. Section 23-11 is to a large extent equivalent to section 182 of the Dispute Act of 1915. Section 23-11 A is the minority proposal on provision of security as a prerequisite for bringing an appeal against a judgement. Section 23-12 on the liability of the State for costs is new, and implies an extension of the liability of the State, which as a matter of principle is important.

Part VI – Evidence Chapters 24 – 31

Chapters 24 to 31 contain rules on evidence. General provisions on evidence are set out in Chapter 24. General rules on evidence, which are important in terms of principle, are included here. There are rules on evaluation of evidence, including the rule on free evaluation of evidence, cf. sections 24-2. There are also rules on rights and obligations relating to presentation of evidence, see sections 24-3 and 24-5. The obligations of the parties as to truthfulness and disclosure will also apply under the provisions of the Dispute Act of 1915, but the Committee has found cause to make such rules explicit in the new Dispute Act, see section 24-4. Important general restrictions on the presentation of evidence, hereunder restrictions based on proportionality, are included in sections 24-7 and 24-8. Sections 24-9 to 24-13 provide rules on the method of presentation of evidence.

Rules on evidence prohibitions and evidence exemptions are included in Chapter 25. These rules are in the main in accordance with current law, although the Committee has found cause to codify some rules which currently are based on case law only. There is also a change from the structure of the Dispute Act of 1915, where such rules are mostly included in the chapter on witnesses and then applied correspondingly to other methods of presentation of evidence. The Committee is of the view that such editorial technique is unfortunate. These provisions should be included in a chapter of general rules.

Chapter 26 governs the obligations of the parties to attend and to make statements, and Chapter 27 contains rules on testimonial evidence. These are mostly in accordance with current law.

Current rules on testimonial evidence from experts are maintained to a considerable degree, see Chapter 28. This is to a large extent also the case regarding the provisions on real evidence, including documentary evidence, see Chapter 29. There is, however, reason to point out that the proposal permits the court to relax the specification requirements as to the real evidence that has to be presented, if it is impossible to provide a detailed specification.

Chapter 30 governs the taking of evidence within a lawsuit. The current rules will to a large extent be maintained, while their formulation and structure will be somewhat different. Chapter 31 regulates the securing of evidence outside a lawsuit. The scope for securing of evidence is somewhat wider than under the Dispute Act of 1915.

Part VII – Special types of procedure Chapter 32. Class action

The Chapter sets out the rules on class procedure. Section 32-2 specifies the prerequisites for class action. In sections 32-3 and 32-4 there are provisions on requests for a case to be dealt with by way of class action and on ruling on such requests. Section 32-5 contains rules on notification of class action and on class registers. Sections 32-6 and 32-7 describe and set out prerequisites for how to be included in a class action under the two main categories available – class actions requiring registration of class members and class actions not requiring registration of class members. Rules on withdrawal are provided in section 32-8. Sections 32-9 to 32-11 govern the rights, obligations and consequences of rulings etc. A special rule on costs is set out in section 32-12. The entitlement of counsel and the class representative to remuneration is regulated by section 32-13. Section 32-14 contains provisions on the financial liability of the class members.

Chapter 33. Cases concerning administrative decisions relating to coercion

These rules correspond to Chapter 33 of the Dispute Act of 1915, although with some changes. Examples of changes include section 33-1(3) on new judicial review being contingent on the case having been dealt with anew administratively, and section 33-9 on anticipatory effect etc.

Part VIII – Amendments to other Acts Chapter 34. Amendments to other Acts

A number of amendments to other Acts are proposed in Chapter 34, which in the main will be consequences of differences between the provisions of the new Dispute Act and the Dispute Act of 1915.

2.4 Part IV of the Report - Draft Statute and Summary in English

Chapters IV.1 and 2 contain, respectively, the draft statute and the summary in English translation.

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