Supreme Court: Parties may agree to additional remuneration for expert lay judges in court cases
The order arises from a case pending before the Eastern High Court as the first instance, concerning an alleged claim for a substantial multimillion amount due to alleged defects in a building in Copenhagen. In this case, Plesner represents one of the defendants, who acted as consulting engineer on the construction project. The case is technically complex, with a high level of detail, and has been scheduled for a nine-day hearing in the autumn of 2027.
During the preparatory stage, the High Court, at the request of two of the parties, one of whom is Plesner's client, decided that the court should be joined by two expert lay judges during the main hearing. The High Court subsequently informed the parties of the names of the two expert lay judges it intended to appoint. However, the parties considered that these individuals did not, in this particular case, possess the expertise that was necessary and desired by the parties.
The parties therefore approached two other experts out of court who had not been appointed, and the parties also entered into a procedural agreement on remuneration, which the experts accepted. Among other things, the procedural agreements provided that the two experts would take on the role of expert lay judges, subject to payment of a fixed additional fee per day of trial, in addition to what is already determined under the Danish Executive Order no. 712 of 17 November 1987 on payments to lay judges and witnesses, etc. (the "Executive Order"). Under the Executive Order, lay judges are paid DKK 4,200 per day of trial, payable by the Treasury.
The procedural agreements also provided that the parties would be liable for the remuneration in excess of that following from the Executive Order, that the cost of the additional remuneration should be included in the court's decision on costs, and how the costs should be calculated and apportioned between the parties under various possible courses and outcomes of the case. The procedural agreements were conditional on the High Court granting the parties' request that the candidates be appointed as expert lay judges, notwithstanding that they had not been appointed through the ordinary process, and that the additional remuneration to the candidates be included in the High Court's apportionment of the costs of the case.
By order of 12 March 2026, the majority of the High Court held that expert lay judges in the case could not be awarded remuneration beyond that following from the Executive Order. The majority of the High Court referred to section 93(7) of the Danish Administration of Justice Act, which provides that the Danish Court Administration shall lay down rules on remuneration and travel allowances for expert lay judges. The Executive Order was issued pursuant to this provision. The majority of the High Court found that awarding expert lay judges remuneration, beyond that following from the Executive Order requires a specific legal basis, and that no such basis existed. This applied although the additional remuneration was to be paid by one or more of the parties pursuant to an agreement between them. The minority of the High Court did not find that the procedural agreements exceeded the limits of what the parties may agree with respect to the calculation and apportionment of costs.
The parties jointly appealed the High Court's order. By order of 5 October 2026, the Supreme Court overturned the High Court's order, thereby permitting the parties to pay remuneration to the expert lay judges in accordance with the parties' procedural agreements. The Supreme Court found that neither the rules of the Administration of Justice Act nor the Executive Order, nor considerations relating to the administration of justice in general, preclude the parties in this particular case from paying remuneration to expert lay judges beyond that following from the rules.
In Plesner's view, the Supreme Court's order is pragmatic and correct. Whether non-appointed expert lay judges can be appointed against the parties' separate payment of an additional fee must depend on the specific case, including its complexity and the content of the parties' agreement. This is important in technically complex cases, where it is crucial to be able to attract experts who are willing to take on the demanding role of lay judge and who, in the specific case, possess the necessary expertise.
Plesner's team on the case comprises Torben Bondrop, Andreas Rye-Andersen and Nicolai Kjærgaard Sørensen.
Read the Supreme Court's order (in Danish)