The dispute regarding the presentation of the photographs arose when the appraiser stated during the appraisal meeting that he could not visibly see from the photographs presented in the case any repairs to parts of the work carried out on the project to which the case related. This was noted in the appraiser's subsequent minutes from the appraisal meeting.

Since the consultant on the project was in possession of such photographs, the consultant wanted to present these to the appraiser for use in his preparation of the appraisal report.

The contractor objected to this. Prior to the initiation of the assessment proceedings, a registration meeting had been held, after which the client had requested an additional registration meeting. The reason for holding the additional registration meeting was that it had now - unlike the first registration meeting - become possible to inspect the part of the building in question, to which the photographs in question also related. However, the developer canceled the supplementary registration, as it was not considered that the now visible part of the building gave rise to registration anyway. However, the developer gave the other parties the opportunity to inspect the area at a specific time if they so wished.

The contractor claimed that by canceling the supplementary registration, the client deprived the surveyor of the opportunity to assess the area, and argued that photographs in such a situation cannot replace the surveyor's own registration when this is due to the client's (the client's) own circumstances.

In this connection, the contractor referred to the Arbitration Board's decision A-10753, where some photo material was excluded on the grounds that: " ... in a situation such as the present one, where the presentation of the photo material is to replace the appraiser's own inspection, where the appraiser is prevented from inspecting the conditions shown in the photo material, and where this is solely due to the fact that B [the requesting party ... ed.] did not request an inspection at an earlier stage, the photo material cannot be presented to the appraiser.".

The counsel argued that a party is generally not precluded from submitting photographs that only show facts, and since the photographs were not likely to influence the arbitrator in any improper way, there was no basis for refusing to produce them. Decision A-10753 concerned "very special circumstances", cf. the Arbitration Board's practice note of January 25, 2024, in which the decision is briefly summarized (the decision is not printed). Thus, the decision could not be compared to this case. Furthermore, it had to be assumed that the case concerned an actual arbitration hearing - in this case, only a registration hearing had previously been held, which constituted a significant difference.

In addition, the appraiser himself had pointed out at the appraisal meeting and in his subsequent minutes that he could not visibly identify the repairs in question from the photographs. The advisor therefore argued that the advisor must of course be entitled to contribute this information so that the appraiser could prepare his opinion on the best possible informed basis.

The developer agreed with the consultant's argumentation and argued that the fact that the developer had canceled the supplementary registration meeting should not be considered significant, as the photographs to be presented had been taken a year before the developer requested the first registration, so there was no temporal connection between the photographs and the revocation of the request for urgent registration. The withdrawal had therefore not had any impact on the appraiser's ability to inspect the conditions himself.

Initially, the Arbitration Board emphasized in its decision that a party is generally not precluded from presenting photographs that only show facts, which applies to photographs taken before or after a case was filed, cf. e.g. U 2013.2296H. However, this does not mean that photographs can be freely produced. The content of the photographs and the circumstances of their creation may, after a specific assessment, lead to a deviation from the starting point.

In the case in question, the Arbitration Board found that the same access to produce photographs should apply, and the Arbitration Board stated that "... emphasis has been placed on what the arbitrator stated in the minutes". The Arbitration Board further emphasized that the photos in question only showed facts and that there was no information about the circumstances of their creation that could lead to a refusal of disclosure. The fact that the client canceled the second registration could not lead to a different assessment, and the Arbitration Board specifically emphasized that the case thereby differed from the decision in A-10753. Finally, the Arbitration Board noted that it would be up to any arbitral tribunal to assess the evidentiary value to be attached to the answer.

The photographs were therefore allowed to be presented so that they could be included in the basis for the assessor's answer.

The decision is interesting as it considers when there are such "very special circumstances" that photographs can be refused to be produced, which there is very little practice on. Reference can of course be made to the above-referenced decision in A-10753, where photographic material was refused, as the photographic material was to "replace the arbitrator's own inspection, where the arbitrator is prevented from inspecting the conditions shown in the photographic material, and where this is solely due to the fact that B [the arbitrator. ed.] did not request an inspection at an earlier date", cf. the Arbitration Board's practice note of 25 January 2024, where the decision is briefly referred to. As the decision is not printed, it is unclear what else the Arbitration Board may have based its decision on.

This new decision provides yet another example of the question of when there are (albeit contradictory) "very special circumstances". It can thus be inferred from the Arbitration Board's decision that there are no such special circumstances simply because the matter could (possibly) have been registered by the arbitrator at a registration event. It is also important to note that the Arbitration Board specifically emphasizes that "...emphasis was placed on what was stated in the minutes by the arbitrator". An interesting question is whether such a remark from the arbitrator could have changed the outcome of the decision in A-10753.

Nielsen Nørager assists the advisor in the case, and if there are any questions regarding the decision, we are of course available.