Access to real evidence

Supreme Court order 21 December 2020, HR-2020-2469-A, (case no. 20-106397SIV-HRET), civil case, appeal against judgment. 

Yara Asia Pte. Ltd (Counsel Frithjof Herlofsen)

v.

Assuranceforeningen Gard – gjensidig, Lloyd’s Syndicate AML 2001, Lloyd’s Syndicate AES 1225, Allianz Global Corporate & Speciality SE, Gard (UK) Limited, AXA Corporate Solutions Assurance, Amtrust at Lloyd’s Hull Consortium 9577, Lloyd’s Syndicate ASP 4711, Lloyd’s Syndicate AAL 2012, Lloyd’s Syndicate NVA 2007, Lloyd’s Syndicate AUL 1274, HCC International Insurance Company PLC, Lloyd’s Syndicate TSS 1884, Lloyd’s Syndicate TAL 1183, Lloyd’s Syndicate AMA 1200, Lloyd’s Syndicate CNP 4444, Bibby Transport Ltd. (Counsel Henrik Hagberg)

Justices: Indreberg, Matheson, Noer, Ringnes, Østensen Berglund

Smoke and toxic gasses developed in a shipload of fertiliser. The load was destroyed and the ship was declared completely lost. In the insurance case between the owner of the shipload and the shipowner company with insurers, the latter wanted to take samples of the fertiliser to clarify the cause of the damage. The Supreme Court, having conducted an oral hearing, stated that the court under section 26-5 subsection 1, cf. section 26-7 subsection 3 of the Dispute Act may order a party to make real evidence directly available to the counterparty, unless the evidence is prohibited or exempted or there are other special circumstances limiting the access to the real evidence. Within the scope of section 26-7 subsection 3, the court may set as a condition that the other party has a right to be present at the counterparty's investigation of the real evidence. However, such a right of observation does not give a right to create the premises for the investigation. The presence must also not prevent the work from being carried out. The right of observation is entirely passive. The Court of Appeal's order, denying the party making the real evidence available a right of observation, was set aside due to an error of law.

Read the whole order (Norwegian only)

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