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Print articleSpeedier Court Proceedings – Pros and Cons
February, 2009 -
The largest change after the 1th of November 2008 is that leave is required to have a civil case heard by the court of appeal. Previously leave has been required for small claims, i.e. disputes relating to a value less than half the basic amount for social security purposes in Sweden. Now leave will be required for all cases. Whilst it will become less difficult to get leave for the court of appeals than in the supreme court, appeals will require the presentation of reasons why leave should be granted in the case at hand.
To speed up the proceedings in the district court, the duty to use a timetable has been extended from being a recommendation to being mandatory if there are no special reasons not to do so. The timetable will normally be prepared in conjunction with oral hearings in the case, in order to plan the period up until the main hearing.
The district court must also make greater use of written summaries of proceedings prior to the main hearing in which the parties’ claims and grounds are summarised.
There are greater opportunities for parties to submit affidavits in cases instead of hearing witness. This will probably not, however, have such a big impact as the evidential value of an affidavit must be deemed to be very low as there is no possibility to cross-examining the witness in question and because the affidavits will probably have been drafted by someone other than the witness.
It is possible for the district court to dismiss evidence which cannot be admitted with reasonable efforts and the judgment should not be further delayed. The significance of this provision is difficult to assess, but ought primarily to be used to be able to settle cases where, above all, the defendant refers to a witness who is unreachable.
For evidentiary reasons, the district court will make video recordings of all examinations. This is so that the court of appeal can watch these instead of hearing the person in question again.
At hearings both in the district court and the court of appeals, the parties can, instead of presenting the facts orally, submit a written statement of the facts and make reference to the document. This is a positive change (which to a certain extent is already applied in cases with a lot of documents) when one has a large number of documents which are self explanatory. This may, however, be used by over-burdened judges to shorten the time for the main hearing, which in turn leads to an increased risk that the court does not get the review of the case which is needed to reach a well-founded judgment. The idea is that, in conjunction with planning the trial, it is to be decided whether presentation of the case is to be oral or by way of reference to different submissions. In the light of the fact that it is no longer (which was common 10 years ago) one judge who follows the case from an application for summons through to the main hearing, it will be difficult to assess whether the judges who are to hear the case have the insight required to be able to reach a well-founded judgment without an oral presentation of the facts with, in any case, a general review of the written evidence. It also imposes increased pressure on the witnesses to make a comprehensible report of the background to the case, which has previously always been done by legal counsel. If applied correctly, there is much to be gained by a concentrated trial, which is held within a reasonable timeframe from the submission to the district court of the application for summons. In recent years it has not been unusual that a case has taken at least two years to get to the main hearing in the district court and then at least another year before the case has been tried by the court of appeals in a normal civil case. In a more complicated case, or where administration is delayed due the necessity for a number of preliminary questions to be handled, the time required before the case is settled can amount to 5-10 years. There is always, however, a risk in speeding up the proceedings as it will, to a greater extent than today, be decisive which judge sits on the case in the district court because it will be very difficult to have the case re-tried by a higher court. If one manages to get leave to appeal, one will also probably not get to hear the witnesses again, instead the judges in the court of appeals will only get to see a film recording where it will not be possible to conduct cross-examination or to make the observations which are only possible in a personal meeting. Naturally, however, the material should be better than when one currently listens to tapes from examinations in the district court, which are quite inaccessible especially when one uses an interpreter.
By Marita Gröndahl, Member of the Swedish Bar Association (Senior Associate)
