The Supreme Court`s appeal committee clarifies the differences between expert and ordinary witnesses

| Insight

The ruling HR-2022-1503-U on the 9th of august 2022 clarified how to distinguish between what constitutes expert witness testimony and ordinary testimony. In essence, one has to consider whether the witness's assessment is based on professional competence and at what time the witness considers the facts of the case.

The material issue of the case, in which the procedural question arose, was whether two decisions by the Alver Municipality regarding property tax for «Mongstad kraftvarmeverk» and «Mongstad raffineri» owned by Equinor were lawful. In order to value the properties, the municipality had engaged an appraiser. Now, before the case is to be decided by the High Court, the parties disagreed about whether the appraiser should be considered an expert witness or not. The High Court decided that the appraiser should be considered an expert witness. Equinor appealed this decision to the Supreme Court and alleged that the High Court had erred in its interpretation of the law.

Whether a witness is considered an expert witness or an ordinary witness determines what rights the witness has during the proceedings. An expert witness is, for example, allowed to follow the proceedings in their entirety. The purpose is to prevent the testimony of the ordinary witness being influenced. For expert witnesses, on the other hand, it is often appropriate to follow the proceedings. An expert witness can also ask questions to regular witnesses and the parties.

The appeal committee presented the disputes act paragraph 25-1 and then pointed out that an expert witness normally gives his expert opinion of the facts of the case, after the fact. Meaning that the opinion is given in hindsight and solely based on the persons professional expertise. A regular witness gives a reiteration of what that person experienced and thought etc. at a given time. This difference between regular testimony and expert testimony does not change even though a person reiterates an observation that was based on that person’s professional expertise.

The appraiser in this case was therefore not to be considered an expert witness for the part of the testimony about his opinion at the time of the valuations of the properties. The High Court had therefore erred in its interpretation of the law and the decision was annulled.

Furthermore, the appeal committee points out that a witness can be considered as both an expert witness and an ordinary witness. This applies to the situation where a witness both gives a reiteration of what that person experienced and thought etc. at a given time and gives an expert opinion. The appeal committee does not provide further guidelines regarding the consequences.

In general, a consequence of a witness being considered as both an expert witness and an ordinary witness is that it can be a discussion about which rights the witness have. For example, whether the person have the right to follow the proceedings in their entirety. However, this is often unproblematic. When a witness is considered to be both an expert witness and an ordinary witness the disputes act paragraph 24-6, that gives ordinary witnesses access to follow the proceedings in their entirety, can often be applied. Previous case law nevertheless shows that it can be a need to assess whether the purpose behind the different set of rules is actualized. More specifically, an assessment of whether there is a risk that the witness testimony will be influenced by following the proceedings in their entirety.

The interpretation of the law in HR-2022-1503-U is in accordance with previous case-law and theory regarding whether a witness should be considered an expert witness or not. The decision nevertheless clarifies how the courts should approach the question in the future and that a witness can be considered both a regular witness and an expert witness.