The Swedish Civil Proceedings Act contains few limitations as to the respective parties’ ability to make use of direct witness evidence. In fact, the courts may only dismiss witness evidence where it is clear that the witness’ statement has no bearing on the matters in dispute.
Experts are appointed by the court either on the initiative of the court itself, or in consequence of a request by one of the parties. In appointing the expert, the court will order the expert to submit an “expert report” to the court. However, it should be noted that the expert must always appear in court to give oral evidence regarding the contents of the written statement. Reports drafted by experts appointed on the initiative of one of the parties are inevitably more in favour of the appointing party whilst reports submitted by experts appointed on the court’s initiative must be entirely objective since the objective of such reports is to serve as an aid to the magistrates in, for instance, complex technical or financial issues. As a separate concept, the Civil Proceedings Act also makes provision for parties’ ability to call an “expert witness” where they are a knowledgeable person. Where an “expert witness” is called in this way, then no appointment of an expert by the court takes place. Furthermore, the distinction is important because unlike the expert appointed by the court, the “expert witness” called by a party will not need or be ordered to submit any report. Of course, it is within a party’s discretion to choose to call an expert as an “expert witness” and not request that he be appointed as an expert by the court. In doing so a party avoids the obligation for the expert to submit a report since he is now termed an “expert witness”. This is crucial because in such a case the other side will not receive in advance of the trial, any indication of what will be given in evidence by an expert at the hearing itself. Although the value of the evidence will be more limited since greater credibility will be afforded to expert evidence than that of an “expert witness”, there may nevertheless be substantial benefit to the party calling the “expert witness” in arriving at trial with the element of surprise in his favour.
Such circumvention of the provisions on expert evidence in the Civil Proceedings Act was not anticipated by the Swedish legislator and there is very limited case law to take guidance from.
In Swedish legal doctrine, attempts have been made to clarify the distinction between an expert and an “expert witness” i.e. by defining an expert as a person who is entitled to disbursement for the work done in connection with their appointment as an expert. (Is this relied upon to challenge the legitimacy of “expert witnesses” who are in fact paid experts? Is there any substantive law preventing using a paid expert as an “expert witness”?). The argument can be used to challenge the legitimacy of an “expert witness” who is in fact a paid expert. However, it is evident that this distinction may easily be circumvented in practice and there is no substantive law preventing such circumvention.