Dispute Resolution | Update – Expert witness? Ordinary witness? Or both?

In Norwegian litigation there are two types of witnesses: ordinary witnesses of fact and expert witnesses. Expert witnesses have certain privileges that ordinary witnesses do not have, such as the unconditional right to follow the main proceedings in their entirety (also before giving their own testimony) and the right to ask questions to the parties and other (expert) witnesses. Because of these privileges, there are occasionally disputes about whether a witness is to be classified as an ordinary or expert witness. In a recent decision the Norwegian Supreme Court’s Appeal Committee (HR-2022-1503-U) clarified the deciding factors when determining whether or not a witness holds status as an expert witness.

The facts of the case

In a property tax dispute, the Court of Appeal had considered an appraiser to be an expert witness. The appraiser had been engaged by the tax authorities to provide a property valuation that was included as part of the factual basis for the assessment of property tax. Hence, the valuation was carried out prior to the dispute before the courts (regarding the validity of the later tax assessment). In the court case, the appraiser was summoned by the tax authorities to give testimony about his earlier valuation (and thereby defend the factual basis for the tax assessment).

The Court of Appeal concluded that the appraiser was giving an expert assessment of the facts in the case, and therefore was an expert witness.

The view of the Supreme Court

The Supreme Court stated, like the Court of Appeal, that to be considered an expert witness, the witness must give an expert assessment of the facts of the case. In addition, the expert assessment must also have been carried out at a later point in time relative to the facts forming the basis for the dispute. To illustrate the difference between an ordinary witness and an expert witness, the Supreme Court used a doctor as an example: A doctor that observes an accident and describes the injured person’s condition based on what the doctor observed at the scene of the accident, is giving testimony as an ordinary witness. When the same doctor describes the probable future condition of the injured person, the doctor is giving testimony as an expert witness.

Based on these principles for the classification of witness status, the Supreme Court concluded that the appraiser in the case at hand was an ordinary witness because he was giving testimony about the valuation he had carried out as part of the factual basis for the later tax assessment being challenged before the courts. Hence, the Court of Appeal’s decision had to be annulled.

The Supreme Court also underlined that it is possible to be both an ordinary witness and an expert witness in the same case, if the testimony covers assessments to be classified in more than one of the two categories.

Our remarks

The Supreme Court’s decision is in our opinion well-founded, as there is a fundamental difference between giving an expert opinion about the facts of an already existing dispute (expert witness status with privileges) and previously to have given an expert opinion as part of a course of events that later end up as relevant in a dispute (ordinary witness status without privileges).

Hopefully, these clarifications will make it easier for parties in the future to agree on the witness classification and avoid time-consuming procedural disputes. However, the practical relevance of the decision should not be exaggerated: The main benefit of an expert witness status is the right to be present during the entire hearing, and this right can also be obtained for ordinary witnesses if they have assisted one of the parties in a substantial manner (which will often be the case). Further, this right will in many cases also be possible to obtain simply by broadening the scope of the testimony to also cover topics giving expert witness status.