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Litigation

Procedure

What is the procedure for filing a product liability claim before the courts in your jurisdiction?

Any party which believes that it is entitled to damages under the product liability rules is entitled to raise a claim against the manufacturer or the intermediary. The proceedings before the courts are instituted by the injured party lodging a writ of summons with the district court. The writ of summons is subject to certain requirements, including that:

  • the claim is clear;
  • the statement of facts is adequate; and
  • the claim is supported by the party's allegations.

 

If these requirements are not met, the court will dismiss the case.

According to the Danish rules on jurisdiction laid down in the Administration of Justice Act, legal action may be brought before either the tortfeasor's home court (ie, where the manufacturer or the intermediary has its registered address or branch) or the court for the place where the harmful event occurred.

The court will ensure that the injured party's writ of summons is served on the defendant manufacturer or intermediary with a request to submit its defence to the court. If necessary, both parties may ask for an expert survey and appraisal and may use relevant evidence (ie, documents, statements prepared before the legal action was brought and witness statements).

When the case has been clarified, it will be set for trial, and in general judgment will be delivered four weeks after the end of the trial.

The parties can still agree to settle the case even after legal action has been brought.

Interlocutory motions

Can the court issue interlocutory orders or judgments in product liability cases? If so, what rules and procedures apply?

Yes, in cases of withdrawal or recall of defective products, interlocutory orders may be issued against the sale or circulation of the products, or an order may be issued to remedy the defect in the products.

The rules are laid down in the Product Safety Act. The Safety Technology Authority is authorised to impose penalties in cases regarding the lack of product safety.

Pre-trial disclosure

What pre-trial disclosure/discovery mechanisms are available in product liability cases, if any?

There are no pre-trial disclosure or discovery mechanisms under Danish law.

Each party may rely on the documents in its possession. During legal proceedings each party may ask the opposing party to produce the documents in its possession. Each party may also ask the court to order a third party to make documents available if they are in the third party's possession. If the opposing party in the legal proceedings refuses to produce the requested document, the court may draw adverse inferences from this.

A party is entitled to request an expert survey and appraisal through the court even if legal action has not yet been brought. This means that it is possible for the party to get information about, for example, the cause of the damage. The expert opinion is usually used to determine whether there is any basis for bringing a legal action or entering into a settlement.

Evidence standards

What evidence is accepted to support claims in product liability cases? What formalities apply to evidence submission?

Under Danish law, a party is entitled to produce evidence that may be important to the case. Typically, an expert survey and appraisal of the defective product will be carried out (ie, an expert opinion about the product or the extent of the damage).

Typical evidence includes:

  • technical reports and opinions by experts to describe the product, the alleged defect and the property damage; and
  • medical records, medical reports and statements from the Danish Medico-Legal Council (the authority charged with giving medical opinions for legal proceedings) to describe the personal injury.

Both parties may also call witnesses.

Expert evidence

Under what circumstances will the court appoint an expert to assist it in examining the merits of the case? What rules and procedures apply?

All parties to a legal action may request an expert survey and appraisal. Both parties may also question the expert. A party may request a specific expert or may propose a specific expert or an organisation to provide an expert. The court will then appoint the expert.

The court will send the parties' questions to be answered by the expert, who will then estimate his or her fee for drafting an opinion and appearing in court. The parties must pay the expert costs as allocated by the court. The court may decide that the parties are to provide security for the expert survey and appraisal expenses.

In the case of a personal injury, usually the Medico-Legal Council gives expert opinions on the extent of the injury and its cause. The Medico-Legal Council is made up of specially selected doctors whose task is to give medical opinions to other public authorities (typically the courts) about the health of individuals.

Opinions obtained by one party before the trial hearing may be produced during the trial hearing in many instances. Correspondingly, the opposing party can obtain its own opinions.

The court must also progress the hearing of the case under the Administration of Justice Act.

Can the parties rely on expert witness testimony to support their claims? If so, what rules and procedures apply?

Danish law does not use the term ‘expert witness’. If an expert opinion is needed in a case, under Danish law it is possible to commission an expert survey and appraisal.

Class actions

Are class actions or any other collective proceedings available for product liability claims in your jurisdiction? If so, what is the procedure for their formation and what benefits do they afford claimants? Are class actions formed on an opt-in or an opt-out basis?

Yes, collective proceedings are possible in Denmark. The parties to collective proceedings must be identified in a document to the court (eg, a writ of summons) and must then individually join the collective proceedings.

The following requirements apply:

  • all parties to collective proceedings must be able to be identified;
  • the claims must be identical;
  • the claims should be heard together; and
  • a group representative should be appointed.

The judgment is binding on all the parties to the collective proceedings.

Appeals

What rules and procedures govern appeals of court decisions?

Under Danish law, almost all decisions made during the case may be appealed to a higher court.

The Administration of Justice Act provides that Denmark has appellate jurisdiction, which means that a procedural party is entitled to have its case tried by two courts. Deadlines apply to appealing a court's decisions and these must be observed in order not to forfeit the right to have the case tried by two courts. However, cases with a value of DKK20,000 or less may be brought before a higher court only with prior permission from the Danish Appeals Permission Board.

In special cases a procedural party may ask to have the case adjudicated by the Supreme Court. In order for this to happen, the district court must send the case to the high court to be heard at first instance and both courts must hold that the case is of general public importance. If that is the case, it is possible to appeal the judgment to the Supreme Court. The losing party before the high court can also ask the Danish Appeals Permission Board for leave to appeal the case to the Supreme Court (leave to appeal to a third instance); the Appeals Permission Board will grant such leave if the case is of general public importance. Special deadlines apply to the requests to the Appeals Permission Board and these must be observed in order not to forfeit such right.

Statute of limitations

What is the statute of limitations for filing product liability claims?

The Products Liability Act contains special rules on the time-barring of claims for damages under both the Products Liability Act and the product liability rules developed in case law. These rules supplement and limit the general rules on time-barring laid down in the Limitation Act.

The general period of limitation is three years from the time when the party raising the claim became aware of the claim, and 10 years for claims for monetary loans. However, an absolute limitation period for product liability of 10 years after the date when the product was brought into circulation applies.

Timeframe

What is the typical duration of proceedings in product liability cases?

The hearing of a product liability action by a first-instance court often lasts at least one year. The time taken depends on individual issues, including the scope of the case and the complexity of the technical evidence and evidence regarding personal injury. It is possible to appeal the judgment to a higher court, which will naturally further prolong the final conclusion.

Costs, fees and funding

Can the successful party to the litigation recover court and attorneys’ fees and any other related expenses from the losing party? If so, what rules and procedures apply?

Yes, as a general rule the courts will order the losing party to pay the legal costs (ie, compensation for the legal fees and other costs to the successful party). Any compensation for the legal fees will be fixed independently of the parties' actual costs, but according to special rules.

The court may decide in special situations that a party is not to pay the legal costs or that each party is to pay its own legal costs.

It is possible for the parties to appeal the court's order as to costs to a higher court; however, special rules apply.

What rules and restrictions (if any) govern contingency fee arrangements?

According to the Administration of Justice Act and the Code of Conduct of the Danish Bar and Law Society, an attorney may charge a reasonable fee for work on the case. In business relationships, the attorney will typically enter into an agreement with the client on the fee before starting the work. If the client is an individual, the attorney must always prepare a fee estimate before starting the work. If the client is successful in the legal proceedings, the court may order the opposing party to pay the legal fees as a part of the determination of the legal costs. The determination is independent of the actual costs but subject to special rules.

Is third-party litigation funding permitted in your jurisdiction? If so, do any rules or restrictions apply?

There are no Danish rules preventing or restricting the possibility of third-party funding.

Is legal aid (ie, public funding) available to claimants in product liability cases? If so, what rules, restrictions and procedures apply?

Individuals can apply to the state for free legal aid. The decision is based on the applicant's income base as well as on the reasonableness of litigating the case. As an exception, an individual may apply to the state for free legal aid in respect of cases arising out of an individual's business enterprise.

Danish insurers offer legal expenses insurance that wholly or partly covers the litigation costs. Legal expenses insurance is subject to special rules and takes precedence over free state legal aid.

Settlement

What rules and procedures govern the settlement of product liability cases?

Settlements are not subject to any special rules in Denmark. The parties can usually settle a case, but subject to the invalidity rules of the Contracts Act. The parties may settle the case both before and during the legal proceedings (eg, after the production of evidence).

The settlement will typically include the product liability claim, the legal costs and interest. If the parties wish to be able to enforce the settlement, either this should be specified in the settlement text or the settlement text must be entered into the court records.

How common are settlements in product liability cases?

It is not unusual to settle product liability cases. The parties may settle the case both before and during the legal proceedings.

Alternative dispute resolution

Are any alternative dispute resolution (ADR) methods required or advised before or in lieu of proceeding with litigation?

Under Danish law there is no requirement that the parties try alternative dispute resolution before bringing a legal product liability action. The parties are also free to bring such legal action before the district court.

When a legal action is brought before the courts, the parties can always ask for court-based mediation, but both parties must agree to participate. If it is not possible to settle the case by court-based mediation, the legal action will continue.

The parties themselves can arrange mediation both before and during legal proceedings, but a party is under no obligation to participate in mediation. The mediation costs are to be paid by the parties and mediation requires that both parties participate actively. Mediation is conducted independently of the court.

How commonly is ADR used in relation to product liability cases in your jurisdiction?

ADR is rare in product liability cases as they are often complex and involve difficult evidential issues. However, ADR is allowed and is becoming more common in Denmark.

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