INSIGHT The litigation process in denmark

Transcription

1 INSIGHT The litigation process in denmark

2 contents An overview 2 Where and who will handle the case 3 Who would handle the litigation? 3 Which court will handle the case? 3 The procedure steps you need to consider when commencing litigation 4 Pre-action 4 Commencing proceedings 4 Court process 5 Evidence 5 Costs 6 Trial Key information 7 Documents 7 Witnesses 7 Record of the trial/judgment 7 Appeals 7 European Court of Justice 8 1 INSIGHT the litigation process in denmark september 2010

3 An overview This memo provides you with a brief summary of the procedures and workings of the litigation process in Denmark. Its purpose is to enable you to give clients who may need to bring or defend proceedings in this jurisdiction a broad understanding of what is entailed. It is not intended to be an exhaustive guide to the litigation process of civil matters. For more information please contact Jes Anker Mikkelsen or Anne Buhl Bjelke. Jes Anker Mikkelsen Partner T E jam@bechbruun.com Anne Buhl Bjelke associate T e abb@bechbruun.com 2 INSIGHT the litigation process in denmark september 2010

4 Where and who will handle the case Who would handle the litigation? A Danish lawyer (in Danish Advokat ) can handle a case in the district courts. In Denmark there is no distinction between different types of lawyers like in the English judicial system where there is a distinction between solicitors and barristers. However, to appear on behalf of a client before the High Courts or the Supreme Court requires right of audience. Before instructing a lawyer to represent the client in legal proceedings it is important to make sure that a lawyer with the appropriate right of audience is appointed, also in the event of appeal. Which court will handle the case? Most civil proceedings take place in the district courts. There are 24 district courts in Denmark. An appeal from a district court lies to the High Court of Western Denmark or to the High Court of Eastern Denmark. The High Court of Western Denmark handles all appeals from the district courts of Jutland, whereas all judgments from the Zealand district courts, including the Copenhagen City Court, and the courts of Funen and Bornholm must be appealed to the High Court of Eastern Denmark. The Supreme Court is a court of appeal for judgments and interlocutory orders made by the High Courts, including the Maritime and Commercial Court. In appeal cases both the factual and legal circumstances of the case are heard. NB! In addition to the ordinary courts, the judicial system in Denmark consists of a number of special courts each handling cases defined by the nature of the dispute. Most importantly, the Danish Maritime and Commercial Court handles cases within the field of international maritime, commercial and business law. 3 INSIGHT the litigation process in denmark september 2010

5 The procedure steps you need to consider when commencing litigation Pre-action As an alternative option to the legal proceedings the parties may agree to engage in Alternative Dispute Resolution (ADR). The most common Alternative Dispute Resolutions are mediation and conciliation. Claims of payment that are not disputed are subject to a mandatory requirement of a 10 days claim notice. Commencing proceedings The Danish Administration of Justice Act contains rules about the legal proceedings in Denmark, including rules on how to commence proceedings. Under Danish law, a lawsuit is instituted by filing a writ of summons with the court of competent jurisdiction. The writ must include certain information such as the identities of the parties, a statement of the competent court with which the writ has been filed, the plaintiff s claim, a statement of the facts on which the plaintiff bases his or her claims, and a statement of the documents upon which the plaintiff relies and if appropriate, motions for referral to the High Court, expert judges, expert opinions etc. Upon receipt of the writ, the court will serve said writ on the defendant, who is given the opportunity to file a statement of defence within a stipulated date. The statement of defence must include the defendant s claim, a statement of counterclaim, if any, a statement of the facts on which the defendant bases his or her claims and/or counterclaims, a statement of the documents upon which the defendant relies and the defendant s postal address in Denmark. If no statement of defence is filed within the fixed time-limit, the court will normally grant a default judgment. The duration of the pre-trial procedure varies, depending on factors such as the complexity of the case, the number of pleadings which the parties decide to file, the extent of the evidence etc. In most cases, a district court judgment will be delivered within one year. For small claims (less than DKK 50,000) a fast track procedure is available. 4 INSIGHT the litigation process in denmark september 2010

6 Service in a judicial district in Denmark As a general rule, legal proceedings may be instituted against a person before the district court in the judicial district of his or her residence. A company may be sued before the district court in the judicial district of its head office, or if no such head office exists the judicial district of a board member or a member of the management board. Service out of the jurisdiction Service on foreign parties to Danish lawsuits (as well as service on Danish parties to foreign lawsuits) will be handled in accordance with applicable law, i.e. the Convention on the Service Abroad of Judicial and Extrajudicial documents in Civil or Commercial Matters concerning non EU citizens and the EU Council Regulation No. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters concerning EU citizens. Request for service on foreign parties to Danish proceedings may be filed with the district courts. The receiving agency for request for service on Danish parties to foreign proceedings is the Danish Ministry of Justice. The parties may have agreed in their contract to be subject to the jurisdiction of the Danish courts, either exclusively or non-exclusively, or may enter into such agreement upon dispute. Court process After the defendant has filed a statement of defence within the fixed time-limit there will be a preliminary hearing before the court, where the parties must consider the legal and factual circumstances and the extent of evidence, e.g. expert opinions etc. Furthermore at the preliminary hearing, the parties must agree on a timetable for further preparation, including exchange of pleadings, and agree on the time of trial proceedings to the extent possible. After the preliminary hearing the court will list the case for trial. During the trial, the parties will be given the opportunity to present the case and adduce evidence. The court may at all times during the trial try to mediate a settlement. After having heard the case, the court may give its advisory opinion and on this basis, the parties may decide to settle the case. At a party s request, the court will give its judgment within six weeks. The High Court has three months to deliver its judgment. Evidence As a general rule, the burden of proof is on the party presenting a claim, i.e. typically the plaintiff. It is the parties responsibility to present the necessary facts and evidence to the court. The court will not of its own motion procure information or evidence. It is therefore extremely important that the case be presented correctly and accurately to the court. In principle, the parties are free to determine the type of evidence they wish to adduce. However, it is entirely for the court to assess all evidence presented to it, whether it be documents or witness testimonies. Depositions are not used in Danish law. A party intending to rely on a witness statement must therefore call the witness before the court. Furthermore there is no general obligation of disclosure. However, in limited circumstances the court can, upon request, order a party or a third-party to produce specific evidence, e.g. documents or pieces of information. As a consequence of the court s freedom to assess evidence, it is also for the court to decide from case to case whether inadmissible evidence may be adduced. It should be noted that in Denmark, the fact that a piece of evidence has been obtained unlawfully does not in itself prevent the court from relying on that particular evidence in its judgment. Depending on the nature of the case, it may be necessary to bring an independent expert as part of the preparation of the case. The expert witness must be appointed by the court, i.e. expert reports obtained by only one party will in most cases not be considered by the court. Costs connected with the engage- 5 INSIGHT the litigation process in denmark september 2010

7 ment of the expert witness must as a general rule be paid by the party requesting the expert witness, at least until the case has been closed. Depending on the judgment, the other party may be ordered to bear these costs. A party s failure to produce documents or information to the court, or failure or refusal to follow the court s requests, could have a prejudicial effect on the case. Costs The costs connected with a lawsuit in Denmark are (i) court fees (ii) costs connected with the litigation, including preserving evidence, e.g. expert opinions, witness fees, translations etc. and (iii) legal fees. A party must pay all costs connected with a lawsuit, at least until the case has been closed. As part of the judgment, the court awards costs to the winning party. As a general rule, the unsuccessful party must reimburse the other party for all costs connected with the lawsuit. In reality, the successful party s costs are only partly reimbursed, the reason being that only court fees and costs connected with expert witnesses etc. are covered in full, whereas legal fees, i.e. lawyers fees, are awarded discretionarily on the basis of the amount in dispute. A party must therefore be prepared to bear parts of his own costs, even if the party succeeds in the lawsuit. Court fees; at the time when the writ of summons is filed with the court, a court fee is levied on the plaintiff. The non-refundable base fee is presently DKK 500 for claims with no pecuniary value. In cases where the amount in dispute exceeds DKK 50,000, an additional fee must be paid. The additional fee amounts to DKK % of the amount in dispute exceeding DKK 50,000. The total court fee to be paid at the time of filing the writ of summons cannot exceed DKK 75,000. After the pre-trial period closes a trial fee must be paid. The trial fee is calculated on the same principles as the court fee and cannot exceed DKK 75,000. The trial court fee will be refunded if not later than six weeks before the date assigned for trial, the court receives notification that the trial has been cancelled, e.g. because the parties have agreed on a settlement. For appeal to the High Court the court fee and trial fee are imposed on the appellant according to the same principles of calculation as before the district court. For appeal to the Supreme Court the court fee and trial fee is raised by 50% and the court fee amounts to a minimum of DKK 1,500. The fee for appeal to the Supreme Court cannot exceed DKK 112,500. Costs; the court will award reimbursement of costs that are reasonable considering the dispute to the winning party. Legal fees; this point basically includes lawyers fees. The awarded costs generally cover all costs connected to court fees, evidence etc. and approximately 1/3 of the legal fees. The court may under specific circumstances decide to derogate from the general rule that the unsuccessful party bears all costs, for instance if the case is of general public importance. Another reason could be that both parties are responsible for the dispute leading to the lawsuit. 6 INSIGHT the litigation process in denmark september 2010

8 Trial Key information Documents The documents in a Danish trial consist of the plaintiff s writ of summons and the defendant s statement of defence, including the written evidence and further correspondence in preparation of the case between the parties. All pleadings and written evidence must be presented in Danish or translated by a certified translator into Danish. Witnesses The Danish Administration of Justice Act imposes a duty to give evidence on all witnesses of fact, thus such witnesses must attend trial and be cross examined on their evidence. Only in limited circumstances the witnesses are privileged. Witnesses are interviewed in Danish or by means of an interpreter before the court. Record of the trial/judgment Civil proceedings in Denmark are recorded by the court at the court s discretion. The parties may obtain transcripts of the court records and the judgment. Members of the public may obtain a transcript of the judgment. Some judgments may be published at the court s discretion at its website. Civil trials are open to members of the public, unless there are good reasons why this should not be the case. A civil case before a district court is heard by a judge alone or by three judges upon request. Judgment may be given at the conclusion of the proceedings or be reserved until a future date. Appeals Judgments made by the district courts may be appealed to the High Court of Western Denmark or to the High Court of Eastern Denmark. A High Court session is held by three judges and may be sided by two expert judges. 7 INSIGHT the litigation process in denmark september 2010

9 First instance High Court judgments and judgments from the Maritime and Commercial Court may be appealed as of right to the Supreme Court. As a general rule, a judgment may only be appealed once. If a judgment concerns questions of general public importance, the Danish Appeals Permission Board may grant leave to a second appeal to the Supreme Court. However, this happens only in very exceptional cases. Judgments made by the district courts must be appealed to the High Court within four weeks from delivery of the judgment. High Court and Maritime and Commercial Court judgments must be appealed to the Supreme Court within eight weeks from delivery of the judgment. European Court of Justice If the court has to interpret an issue relating to EU law, the court may refer the issue to the European Court of Justice for a preliminary ruling. The court must then apply the preliminary ruling when considering the facts of the case. 8 INSIGHT the litigation process in denmark september 2010