Autumn is well under way, and Thommessen's Dispute Resolution Team brings you a summary of the most important news within litigation and arbitration from the third quarter of 2026.
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Civil procedure: Conditions for the award of witness fees in Norwegian court proceedings
On 1 September 2026, the Supreme Court's Appeals Selection Committee set aside the Court of Appeal's costs decision in a major tax case. The Court of Appeal had not adequately justified its award of approximately NOK 1.7 million in witness fees.
The case arose from a tax dispute between Odfjell Offshore Ltd and the state. The company had claimed a deduction for a loss of approximately NOK 2.25 billion on a share sale. The tax authorities refused the deduction on the basis of the unlegislated anti-avoidance doctrine. The District Court ruled in favour of the state, but the Court of Appeal found for the company, set aside the tax assessment and awarded the company legal costs, including approximately NOK 1.7 million in witness fees. The state appealed the costs decision.
The Appeals Selection Committee held that expenses for witnesses who appear voluntarily are not governed by the Witnesses and Experts Fees Act, but by the general necessity criterion in section 20-5 (1) of the Disputes Act. The starting point is that travel costs, other expenses and loss of income may be considered necessary, provided they do not exceed what is reasonable in the case. Compensation beyond this requires specific justification, both as to its basis and its amount.
The Court of Appeal had merely stated that the witness expenses were “reasonable and necessary”, without examining the basis for the fees or how each witness’s fee had been calculated. The Appeals Selection Committee found the reasoning too brief to allow the court’s discretion to be reviewed, and set aside the costs decision.
The ruling provides important guidance for legal counsel seeking to recover witness fees in larger cases. Where costs beyond travel and loss of income are claimed, the basis must be properly documented and specifically justified. Courts must, for their part, provide reasoning that allows for appellate review – particularly when the amounts are significant and objections have been raised.
Thommessen assisted the company in the tax case.
Entitlement to legal costs where the opposing party has rejected a reasonable settlement offer
On 31 July 2026, the Supreme Court's Appeals Selection Committee set aside the Court of Appeal's costs ruling because the court had failed to consider settlement offers invoked by one of the parties. The decision confirms the Supreme Court’s line: when determining who should bear the legal costs, the court cannot disregard a settlement offer that would have given a party a better outcome than the judgment.
The starting point for the allocation of legal costs is clear. If you win the case, you are entitled to have your costs covered by the opposing party. Where neither party has won in full or in all material respects, the general rule is that each party bears its own costs. If you have nevertheless prevailed on significant issues, you may be awarded costs in whole or in part where compelling reasons so indicate. One factor under the Dispute Act in this assessment is whether the opposing party rejected a reasonable settlement offer.
The case concerned two home buyers' claims for a price reduction, liquidated damages and compensation under the Housing Construction Act, as well as the contractor's claim for additional remuneration. Neither party won, and the Court of Appeal stated, without further reasoning, that there were no compelling reasons to award legal costs. The contractor had, however, made three alternative settlement offers, two during court-led mediation before the District Court and one after the District Court's judgment, all of which the buyers had rejected. At least one of the offers would have given the buyers a substantially better outcome than what they achieved in the Court of Appeal. Although the offers had been invoked in both the opening statement and closing arguments, the Court of Appeal did not mention them.
The Appeals Selection Committee held that this was a procedural error. Where an invoked settlement offer would have given the party a substantially better outcome than the judgment, the court must address it in its reasoning. That the offers were made relatively late was not decisive. The committee referred to two cases in which legal costs rulings were set aside even though the offers came even later – during court-led mediation in the Court of Appeal and after the appeal and reply had been filed. Deficient reasoning only leads to a decision being set aside if it is reasonably likely that the error may have affected the outcome. That the ruling was set aside may therefore suggest that the buyers should at least have been ordered to bear part of the costs.
Key takeaways:
- Document settlement offers in writing and consider submitting them as evidence.
- Offers made late in the proceedings, even after an appeal has been filed, may also affect the ruling on legal costs.
- Settlement offers that would have given the opposing party a better outcome than the judgment are relevant to the costs ruling.
- Consider the consequences of rejecting a settlement offer. A rejection may have costs consequences if the final outcome does not exceed the offer.
A judge's clear statements in a provisional attachment case led to disqualification
On 25 June 2026, the Supreme Court ruled on when a judge’s prior handling of a provisional attachment (injunction) case may lead to disqualification in a subsequent case within the same set of proceedings. A majority of four justices concluded that the appellate judge was disqualified because, in the attachment case, she had taken clear positions on factual issues that were also central to the subsequent damages case.
The case stemmed from a dispute over electricity contracts with price caps. A company had taken over the contracts and transferred them to its subsidiary, which shortly thereafter halted deliveries and billed customers above the price cap. Several customers claimed damages. Shortly beforehand, one of the appellate judges in the damages case had heard a petition for provisional attachment in a parallel case concerning similar claims from other customers.
The Supreme Court held that a judge’s prior involvement in the same set of proceedings in the same court does not normally, in itself, constitute grounds for disqualification. The rules of procedure are based on the premise that a judge can act neutrally and make new assessments, even if the judge has previously issued interim rulings in those proceedings.
The majority nevertheless pointed out that the appellate judge in the attachment case had taken positions that went “considerably further than necessary” to establish grounds for attachment. The Court of Appeal stated, among other things, that it “had no doubt” that the subsidiary had unlawfully suspended supplies, and that it was “beyond doubt” that the parent company had a full overview of the subsidiary’s finances. The ruling also contained statements on one party’s credibility and pattern of conduct. The case was essentially in the same position as when the attachment petition was heard. The Court of Appeal’s judgment was therefore set aside.
The judgment is a reminder that judges making interim decisions - such as provisional attachment or preliminary injunctions - should be mindful of the wording used. Positions that go further than necessary may lead to disqualification later in the same set of proceedings. Lawyers should check whether judges have been involved in related cases and raise any impartiality objections early.
From the civil service to the bench - two new rulings on the disqualification of judges with a public-sector background
In this period, the Supreme Court has handed down two rulings on when a judge’s previous employment in the civil service leads to disqualification under the Courts of Justice Act. The starting point remains that previous employment does not in itself lead to disqualification. The rulings nevertheless show that the threshold may be lower than many have assumed, even where the employment lies far back in time.
The EEA case in the grand chamber (hr-2026-1454-s)
On 26 June 2026, the Supreme Court, sitting in Grand Chamber, held by seven votes to four that a judge was disqualified in the case on whether the EU Temporary Agency Work Directive applies to work on board ships in the petroleum industry on the Norwegian continental shelf. The issue concerns the geographical scope of the EEA Agreement – a topic on which Norway and the EU have long held differing views. The judge had previously been employed in the Ministry of Justice’s Legislation Department (1997–2004) and at the Office of the Attorney General (2004–2011), and had provided input to an internal study on the application of the EEA Agreement to the continental shelf, without being responsible for it. His duty of confidentiality prevented him from providing further details of his role.
The majority held that the uncertainty regarding the judge’s role should result in disqualification. Considerable weight was given to the significant political and public interest in the case, nationally and internationally, and to the fact that one of the parties had raised an impartiality objection. The minority pointed out that the judge’s role had been subordinate, that the study was internal and lay far back in time, and that new legal sources had since emerged.
The grocery chain case (hr-2026-2063-a)
On 25 September 2026, the Supreme Court held by three votes to two that one of two appellate judges who had previously held senior positions in the Norwegian Competition Authority was disqualified in the case concerning infringement fines totalling close to NOK 5 billion imposed on the major grocery chains NorgesGruppen, Rema 1000/Reitan and Coop. The case is scheduled to be heard by the Gulating Court of Appeal from 12 October 2026.
Judge Oma was Director of Investigations at the Authority until 2017. He had not worked on the case itself, and the formal investigation was opened only after he had left. The majority nevertheless noted that the Authority’s mapping of the grocery chains began in 2016 while he was Director of Investigations, and that he attended management meetings where this work was discussed. Of particular importance was that, in 2013, he had taken part in interviews in a related case which gave the Authority “detailed and unique insight” into the chains’ price competition – information that forms part of the basis for the present case. There was therefore a real risk that he had gained a special insight that the impartiality rules should capture. The majority also emphasised that this is the Authority’s largest case, that it has attracted considerable attention, and that the infringement period largely falls within his employment. That some nine years had passed was not decisive.
The minority considered that Oma was not disqualified either, warning that the impartiality rules would become “unmanageable” if participation in work that gave the authority general background for a later case were to lead to disqualification.
What do the rulings mean in practice?
The passage of time alone does not ensure impartiality where the judge has dealt with the central issue in dispute, or may have gained special insight into matters relevant to the case. Significant political and public interest lowers the threshold, and an impartiality objection from a party carries weight in cases of doubt. A specific assessment of impartiality must nevertheless be made in each case.
Suspected AI use in the District Court - ruling with "fabricated" arguments set aside
On 24 September 2026, the Court of Appeal set aside a District Court ruling that cited arguments the parties had never made, and failed to address the argument that had actually been made. This was due to suspected use of AI.
The case concerned a property tax dispute between Ineos Tyssedal AS and Ullensvang Municipality, in which the District Court had dismissed parts of the claim. Ineos appealed, arguing that it was reasonable to assume that parts of the ruling had been written by AI. The municipality agreed that the summary was wrong – it too had been attributed an argument it had not made – but argued that the error had not affected the outcome.
The Court of Appeal disagreed. It did not decide whether AI had been used, but held that the ruling was in any event inadequately reasoned. The parties are entitled to have the case decided on the basis they have presented, and the error was so serious that it may have affected the outcome. Nor did the Court of Appeal wish to decide the matter itself, as the issue would then in practice have been tried at only one instance. The ruling was set aside, and the case returns to the District Court.
According to the publication Rett24, the Chief Judge of the District Court has confirmed to TV 2 that AI was used in the drafting of the ruling. The newspaper also ran the ruling through the AI detector Pangram, which estimated that the reproduction of the parties’ arguments was 100 per cent AI-generated, whilst the District Court’s own assessment had been written by a human. The test was carried out by the newspaper itself and was not part of the Court of Appeal’s assessment.
The case comes as the Norwegian National Courts Administration is consulting on new guidelines for the courts’ use of AI, scheduled to be finalised by the end of October. It shows that the courts, too, must quality-assure work where AI has been used.
Creditors may sue for the benefit of the bankruptcy estate
On 21 August 2026, the Supreme Court’s Appeals Selection Committee clarified a creditor’s right to bring proceedings in its own name for the benefit of a bankruptcy estate. A creditor that had not voted against the creditors’ meeting’s decision not to pursue an avoidance claim could nevertheless pursue the claim in its own name.
In June 2024, Sensit Solutions AS transferred its software business to the newly established Neowit Software AS, and was declared bankrupt in November that year. The estate claimed avoidance of the business transfer, but the creditors’ meeting decided not to pursue the claim through the courts. Only the Tax Administration and the NAV Wage Guarantee Scheme were entitled to vote, and both voted against.
A creditor wishing to pursue the claim assigned its claim to Julu Investment AS, which brought avoidance proceedings in its own name. The District Court and the Court of Appeal (by a majority) dismissed the case because the assignor had not voted against the decision.
The Appeals Selection Committee reached the opposite conclusion. Under the Bankruptcy Act (section 118), creditors who have voted against the decision may take up the case “on behalf of the estate” – that is, in the estate’s name, but at their own expense. Alongside this scheme, a rule developed in case law on the basis of section 1-3 of the Disputes Act allows a creditor to sue in its own name over the estate’s rights. The Appeals Selection Committee held that this right also applies after a creditors’ meeting has been held, as the same enforcement considerations apply. The action must aim to strengthen the common interests of the creditors, but it is sufficient that the creditor undertakes to distribute any recovery in accordance with the applicable liquidation rules. The case was allowed to proceed.
The ruling gives creditors two routes where the estate will not pursue a claim. Proceedings in the estate’s name under section 118 of the Bankruptcy Act require the creditor to have voted against the decision and to sue within the deadline set by the court, but also prevent the estate from settling the claim. Proceedings in the creditor’s own name are not subject to these conditions, but do not offer the same protection against the estate disposing of the claim. For the counterparty, the ruling means that a decision by the creditors’ meeting does not necessarily put an end to an avoidance claim.
Submit your own health records, and the opposing party's expert may use them
On 9 October 2026, the Supreme Court’s Appeals Selection Committee ruled on how far implied consent extends when a party itself submits confidential health information as evidence. The committee set aside the Court of Appeal’s ruling excluding a note from the insurer’s expert.
The case concerned a claim for occupational injury compensation against the insurance company Protector Forsikring ASA. During preparations for the appeal hearing, the injured party submitted an MRI report as evidence. Protector then submitted a note from a chiropractor interpreting the report. The Court of Appeal excluded the note, citing the evidentiary prohibition in section 22-5 (1) of the Disputes Act and the duty of confidentiality in section 21 of the Health Personnel Act, and emphasised that the injured party had previously withdrawn the authorisation he had given Protector to obtain health information.
The Appeals Selection Committee found it clear that when a party itself submits an MRI report as evidence, this constitutes implied consent under section 22-5 (3) of the Disputes Act. Once evidence has been adduced, it is common to all parties, cf. section 21-2 (2). Whether the opposing party may also pass the information on to a privately engaged expert depends on the interpretation of the consent. Referring to case law, the committee held that the consent is naturally understood as extending to disclosure to the opposing party’s expert, unless there are indications to the contrary. The Court of Appeal had not assessed this, relying only on the withdrawn authorisation – even though the MRI report was submitted after the withdrawal. Its ruling was therefore set aside.
The ruling is of practical importance in personal injury cases, but also generally. A party submitting its own health information must expect the opposing party to have its own experts assess it, and an earlier withdrawal of authorisation does not necessarily change this. A party wishing to limit such use should make an express reservation when submitting the evidence. The committee also noted that witnesses and experts are bound by confidentiality under section 22-12 of the Disputes Act, and that the Court of Appeal must consider whether the rules on written statements in section 21-12 (2) prevent the note from being submitted.
