Peter Schradieck April 26 2011 Supreme Court interprets right to hear and examine witnesses Plesner Advokatpartnerselskab | Litigation - Denmark Peter Schradieck Litigation 'First-come' policyDanish Bar and Law Society's code of conduct Guidance in Supreme Court decision'First-come' policySection 183(1) of the Administration of Justice Act states that in the event of a dispute before the courts, the party which first claims a witness has the right to hear and examine that witness. Therefore, under Danish procedural law, the plaintiff has the option to lay first claim on a witness, even if the witness has a stronger connection to the defendant (eg, if the defendant is the witness's employer). By naming a witness in its statement of claim, the plaintiff can secure its right to that witness. In these circumstances the defendant is generally prohibited from corresponding with the witness before the hearing. This can be problematic, as the witness may be crucial to the preparation of the case for the defence. As a result, the rule can be used as a procedural ploy to 'hijack' a key witness, thereby hindering the preparation of the case, or even to harass the defendant.It was normal court practice to grant a party that called a witness the right to hear and examine that witness, even if this was done as early as the statement of claim (for further details please see "Witness examinations - the right to hear and examine a witness"). However, the Maritime and Commercial Court partly amended this rule in 2007, when it found that one of the witnesses in a case had "party-like status" and therefore should be considered the defendant's witness, even though he had first been called by the plaintiff. The court attached particular importance to the witness's position within the defendant's organisation and his role in the events that led up to the case. However, the Supreme Court did not consider the issue until July 22 2010, when it issued a decision that confirmed the analysis of the Maritime and Commercial Court. It found that the party which first lays claim to a witness has the right to hear and examine that witness, unless the latter has party-like status in connection with the opposing party. Danish Bar and Law Society's code of conduct The rules in the act are supplemented by the Danish Bar and Law Society's code of conduct, which has been interpreted as preventing a party from contacting the opposing party's witnesses before a hearing. However, this interpretation has become less strict over the past few years. Statements from the Danish Bar and Law Society have allowed parties to contact opposing parties' witnesses before the hearing, provided that counsel for the opposing party is notified in due time. Despite this, Danish lawyers remain reluctant to contact an opposing party's witness. The Supreme Court ruling has shed light on the interpretation of the code of conduct on this issue.Guidance in Supreme Court decisionThe case in question related to coverage under an insurance policy. The plaintiff's statement of claim indicated that he wished to call three witnesses from the defendant's company. The defendant wanted to call the same witnesses and had indicated this in the statement of defence - it argued that they should be considered its witnesses and should be heard by it first. However, the Supreme Court found that the witnesses should be regarded as the plaintiff's witnesses, as they did not have party-like status. The court made a significant comment regarding the application of the code of conduct, stating that Section 183(1) of the act should not be construed so as to deny a defendant the possibility of obtaining information that is necessary to protect its interests. This comment, taken together with the new attitude of the Danish Bar and Law Society, indicates that where a plaintiff has 'reserved' a witness in the statement of claim, the defendant must be allowed greater access if the witness is a current or former employee. For further information on this topic please contact Peter Schradieck at Plesner by telephone (+45 33 12 11 33), fax (+45 33 12 00 14) or email ([email protected]).