Progressing the caseTypical procedural steps
What is the typical sequence of procedural steps in commercial litigation in this country?
The typical sequence of procedural steps in complex commercial litigation cases is as follows:
- the claimant files a writ of summons;
- the writ of summons is served on the defendant;
- the defendant files a statement of defence;
- an interim hearing is conducted, ordinarily by phone and with the court and the lawyers representing the parties participating (not the parties themselves). The purpose of the interim hearing is to schedule the rest of the case preparation;
- submission of questions to an expert appointed by the court if requested by a party;
- submission of additional questions to the expert appointed by the court if requested by a party;
- filing of further pleadings by the parties;
- close of pleadings (normally four weeks prior to the oral hearing);
- the claimant’s production of a trial bundle, if requested by the court;
- the parties’ production of a bundle of authorities, if necessary;
- a trial hearing, including presentation of the case, bringing forward witnesses for them to give testimony and oral pleadings;
- the court delivering judgment (normally four to eight weeks after the trial hearing); and
- filing of an appeal if possible and desired.
Can additional parties be brought into a case after commencement?
Yes, it is possible to bring additional parties into a case that has already commenced. As such, additional parties can be brought into the case by giving a third-party notice, by third-party intervention or by third-party amicus participation.Third-party notice
A party to the case can bring a third party into the case by giving a third-party notice; see question 26.Third-party intervention
A third party can intervene in a pending case by filing an intervenor’s petition. The requirements for such a petition to be granted are that:
- there is jurisdiction for the third party’s claim in Denmark;
- the third party’s claim can be processed according to the same rules of procedure as the claims comprising the pending case; and
- the third party’s claim concerns the same subject matter as the claims comprising the pending case, or that the third party’s claim has such a coherence with the claims comprising the pending case that the claims should be processed together.
Amicus participation by a third party means that the third party is granted the right within the specific limits imposed by the court to make statements and produce evidence in the proceedings. Such third party, however, is not a party to the proceedings, but can still be awarded or have legal costs imposed on him or her.Consolidating proceedings
Can proceedings be consolidated or split?
Proceedings can be both consolidated and split. In both cases it will be up to the court to decide, within the scope of the relevant sections in the Administration of Justice Act, whether proceedings are best processed if consolidated or split. That said, a consolidation of two or more separate proceedings is much more common than the split of a case.Court decision making
How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?
The courts will assess any produced evidence and any claim or factual allegation in accordance with the legal principle of free evaluation of evidence and, as such, the courts will at their discretion decide whether the evidence produced is sufficient. The Danish courts are known for seeking a righteous and fair result, although always with respect for the parties’ autonomous management of a case; this means that the courts will assess only evidence and allegations brought forward by the parties, and nothing more.
As a general rule, the burden of proof lies with the party bringing a claim or an allegation. However, if a fact is described by a party (eg, in a pleading), the alleged fact will be considered established if it is not disputed by the counterparty even though the party does not produce any supporting evidence.
How does a court decide what judgments, remedies and orders it will issue?
The court will render a judgment, a remedy or an order based on the claims brought by the parties. The court cannot go beyond the parties’ claims when rendering a judgment, etc, but according to the principle that the lesser is always included in the greater (eo quod plus sit semper inest et minus), the court can give partial judgment for a brought claim.Evidence
How is witness, documentary and expert evidence dealt with?
Documentary evidence is uploaded to the Danish courts’ case portal (www.minretssag.dk) during the preparation of a case and in connection with the filing of pleadings.
Witnesses are, as a general rule, heard during the trial hearing. In certain situations, however, a witness statement can be delivered in writing or orally at a preliminary hearing.
Expert evidence is most commonly provided by the use of an expert evaluation according to which an expert selected by the court will review the scene of the events in question and, on that basis and his or her professional competences, will answer questions brought by the parties in an expert report. The expert’s report will be produced as evidence, and the report can be certified by the expert giving testimony during the trial hearing, when the parties are eligible to ask elaborating questions based on the report.
How does the court deal with large volumes of commercial or technical evidence?
Generally, large volumes of evidence or technical evidence do not cause problems. That said, large volumes of evidence and technical evidence always necessitate great endeavours by the parties (and their lawyers) to ensure that the evidence is presented in a structured way, and put in its right context, in order to enable the court to process and evaluate that evidence expediently.
Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?
Voluntary witness testimonies of foreigners can often be given by video conference, enabling foreign witnesses to avoid travelling (and saving the party bringing forward the witness from including the travelling expenses as part of the witness compensation).
In cases where a witness opposes, that question must be answered by looking at the relevant treaty or convention that Denmark has concluded with the country where the foreign witness is living. The most relevant regulations are:
- Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters;
- Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention); and
- the Danish law on the Nordic duty to give evidence (which came into force as a result of Nordic Council Recommendation No. 17 of 1968). The law applies to persons residing or staying in Finland, Iceland, Norway and Sweden.
As a result, in many cases it will be possible to compel a witness to give testimony in or to a Danish court even when the witness opposes. According to the same regulations, foreign courts can in many cases compel a witness in Denmark to give testimony in or to a foreign court with assistance from a Danish court.
How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?
In Denmark, there is no testing of witness and documentary evidence before the trial hearing, and if a document is contested by the opposing party, each party must substantiate its allegations regarding the document’s evidential value to its best effort.
During the trial hearing, witnesses are asked by the court to confirm their identity before giving testimony.
Cross-examination in Denmark is permitted, and both parties’ lawyers will normally ask witnesses questions, beginning with the party who summoned the witness.Time frame
How long do the proceedings typically last, and in what circumstances can they be expedited?
Proceedings in complex commercial litigation cases typically last between 12 and 24 months before the court of first instance, and from a practical perspective the parties only have either very limited or no possibilities to expedite the proceedings.Gaining an advantage
What other steps can a party take during proceedings to achieve tactical advantage in a case?
In most cases, the possibility of achieving a tactical advantage relates to the subject matter of the proceedings.
Procedurally, the possibility of achieving a tactical advantage is limited, but a party can, inter alia, request an interim order relating to only a part of the subject matter, or summon key witnesses before the counterparty gets the chance to summon them, as the summoning party will be eligible to ask questions to these witnesses first during the trial hearing, which in some cases can be a (significant) advantage.Impact of third-party funding
If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?
A third party can fund the costs of the litigation and pay adverse costs. A funding third party is, however, not a party to the proceedings and, as such, this has no formal or legal impact on the case.Impact of technology
What impact is technology having on complex commercial litigation in your jurisdiction?
Paperless trials are becoming more and more common, especially in commercial litigation with an extensive amount of documentation. This is in line with the digitalisation process resulting from the Danish courts’ internet-based case portal (www.minretssag.dk), which has made physical papers more uncommon as all documentation, prima facie, most be produced digitally to the courts.
Further and in principle, the courts possess the technology to have witnesses or experts give testimony by video. However, this possibility is still only available as an exemption in situations of an extraordinary nature, as the courts prefer testimonies to be given in person.Parallel proceedings
How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?
Parallel proceedings, whether regulatory, criminal or commercial, have no formal impact on a pending commercial case. However, a pending commercial case can be put on hold while awaiting the result of parallel proceedings if requested by a party and if the court concurs with the request. This may be the case if a relevant legal position is expected to be clarified in the parallel proceedings, or if certain relevant facts of the case are expected to be clarified. Such postponement of a pending commercial case will only be granted at the court’s discretion when deemed expedient.