Ligitation process in Denmark 1. Litigation process in Denmark. A brief summary of the procedures and workings of the litigation process in Denmark.

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1 Ligitation process in Denmark 1 Litigation process in Denmark A brief summary of the procedures and workings of the litigation process in Denmark.

2 Litigation process in Denmark 2 Content Who will handle the lawsuit and at which court 3 The procedure steps you need to consider when commencing litigation 4 Trial - key information 6 Contact us 8

3 Ligitation process in Denmark 3 Who will handle the lawsuit and at which court Who will handle the lawsuit? A Danish lawyer (in Danish Advokat ) is licensed to litigate in the Danish 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, the Maritime and Commercial Court or the Supreme Court requires right of audience. Before instructing a lawyer to represent you 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 lawsuit? 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 (Vestre Landsret) or to the High Court of Eastern Denmark (Østre Landsret). The High Court of Western Denmark handles all appeals from the district courts of Jutland (Jylland), whereas all judgments from the Zealand (Sjælland) district courts, including the Copenhagen City Court (Københavns Byret), and the courts of Funen (Fyn) and Bornholm must be appealed to and will be handled by the High Court of Eastern Denmark. The Supreme Court (Højesteret) is a court of appeal for judgments and interlocutory orders made by the High Courts, including the Maritime and Commercial Court (Sø- og Handelsretten). In appeal cases both the factual and legal circumstances of the case are heard. 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 Maritime and Commercial Court handles cases within the field of international maritime, commercial and business law. Notable features of Danish litigation process: Discovery/disclosure is not applied in Danish law. Depositions are not applied in Danish law. Expert witnesses must be appointed by the court and the costs incidental to the appointment of such witnesses must, as a general rule, be paid by the party requesting such expert witnesses. Expert opinions procured by a party are only to a limited extent admissible as evidence. Generally, the parties to a case must be prepared to pay parts of their own legal costs, also when succeeding in the lawsuit.

4 Litigation process in Denmark 4 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 Resolution types 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 (retsplejeloven) 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, and of the competent court, the plaintiff s claim, a detailed statement of the facts and legal arguments on which the plaintiff bases his or her claims, and a reference to 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 detailed statement of the facts and legal arguments on which the defendant bases his or her claims and/or counterclaims, a reference to 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 and the extent of the evidence. In most cases, a district court judgment will be delivered within one year. However, if the proceedings include obtaining an expert opinion, the pre-trial procedure is often longer than one year. For small claims (less than DKK 50,000) a fast track procedure is available. Service in a judicial district in Denmark As a general rule, legal proceedings must be instituted against a person before the district court in the judicial district of his or her residence. A company must 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. Foreign persons and companies can be sued in Denmark if there is jurisdiction in Denmark according to a jurisdiction clause, the Danish Administration of Justice Act or the rules in the Brussels I Regulation (Council Regulation (EC) No. 44/2001) about jurisdiction at the place of performance or jurisdiction at the courts for the place where the harmful event occurred. 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 Hague 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 must 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. 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 (normally held as a conference call), where the parties must consider the legal and factual circumstances and the extent of evidence, such as expert opinions and witnesses. 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. At 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 four weeks. The High Court has four weeks to deliver its judgment in appeal cases and two months in other cases.

5 Ligitation process in Denmark 5 Evidence As a general rule, the burden of proof is on the party presenting a claim, 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 are presented correctly and accurately to the court by the plaintiff s lawyer with all the facts and legal arguments and with the supporting documents enclosed as exhibits. Discovery is not used in Danish law. 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, such as documents. 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. As a result, expert reports obtained by only one party will in most cases not be considered by the court. Costs connected with the engagement 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, for example expert opinions, witness fees and translations, 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 successful 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 for example expert witnesses are covered in full, whereas legal fees, such as 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 the court receives notification that the trial has been cancelled, for example because the parties have agreed on a settlement. To receive full reimbursement notice of cancellation must be given no later than six weeks before the date assigned for trial. 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 Legal fees basically includes lawyers fees. The awarded costs generally cover approximately 1/3 of the legal fees and all costs connected to court fees and evidence. 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 Litigation process in Denmark 6 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 pleadings exchanged between the parties, also including the written evidence (produced documents). All pleadings and written evidence must be presented in Danish or translated 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 lawsuit 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. 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.

7 Ligitation process in Denmark 7 Contact us Bech-Bruun is one of Denmark s leading full-service law firms. From our offices in Copenhagen, Aarhus and Shanghai, we provide advice on all aspects of corporate and commercial law to Danish and international companies, organisations and public authorities. We are more than 525 employees counting some of the most experienced and reputable law experts in Denmark. Our measure of success is the achievement of solutions that create value for our clients. Please visit us at This publication is not entended to be an exhaustive guide to the litigation process of civil matters in Denmark. Its purpose is to give you who may need to bring or defend proceedings in this jurisdiction a broad understanding of what such proceedings involve. For more information please contact: Jes Anker Mikkelsen Partner T E jam@bechbruun.com Anne Buhl Bjelke Partner T E abb@bechbruun.com

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