Responding to the claimEarly steps available
What steps are open to a defendant in the early part of a case?
The defendant can take three steps when a writ of summons has been served and the court has set a date for the defendant to react:
- file a statement of defence on the merits of the case;
- file a statement of defence with a motion to dismiss the case for a technical fault in pleading; or
- ignore the writ of summons and the date set by the court, which will result in a judgment by default against the defendant; see question 28.
When filing a statement of defence on the merits of the case, the defendant will usually oppose the points of law and fact presented by the claimant in the writ of summons.
When filing a statement of defence with a motion to dismiss the case for a technical fault in pleading, the defendant will allege, for example, that:
- the claimant does not have a sufficient cause of action;
- the parties are subject to agreed arbitration;
- the case has not been submitted to a competent court; or
- the writ of summons does not meet the requirements stipulated in the Administration of Justice Act.
How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?
Ordinarily, a statement of defence must be filed within two or four weeks, the latter in cases where the defendant is represented by a lawyer. However, it is common that an extension of the time limit is given if a defendant requests it.
There are no formal requirements regarding the structure of statements, but a statement must comprise the following:
- the defendant’s claim (often acquittal or dismissal);
- the defendant’s counterclaim, if any;
- a description of the case;
- a comprehensive statement of the claim (the relevant facts of the claim) and the allegations brought to support the claim;
- production of the relevant evidence (both documents and a list of witnesses) to support the defendant’s claim; and
- the defendant’s motions on litigatory matters, including, inter alia, if the case is of general public importance and, consequently, should be heard by the Danish High Court as the court of first instance; if the court should be manned by more than one judge; or if the claimant is seeking certain legal actions (eg, information retrieval by expert valuation).
A motion to dismiss a case for a technical fault in pleading must be submitted no later than in the statement of defence. If such a motion is delivered later in the proceedings, the motion will be dismissed.Changing defence
Under what circumstances may a defendant change a defence at a later stage in the proceedings?
See question 20. The only special rule is a defendant’s motion to dismiss a case for a technical fault in pleading, which must be submitted with the statement of defence and cannot be submitted at a later point in time.Sharing liability
How can a defendant establish the passing on or sharing of liability?
If a defendant is of the opinion that a third party, fully or partially, is liable for the claim brought by the claimant, the defendant can issue a third-party notice against such third party arguing that the third party, fully or partially, shall hold harmless and indemnify the defendant in the event the defendant loses the case brought by the claimant.
A third-party notice is comparable to a statement of claim, and the defendant will, with reference to a third party, be a third-party claimant. As such, when the defendant files a third-party notice, the defendant must comply with the same provisions as a claimant filing a statement of claim.
Such a third-party notice should be filed at the soonest possible moment, as the notice can be dismissed if the claimant raises objections towards the notice, and if the court assesses that the third-party notice could and should have been filed at an earlier point in time.Avoiding trial
How can a defendant avoid trial?
In almost any dispute, if the conditions are right the parties are interested in finding an amicable solution that could result in a settlement agreement. Settlement agreements are binding, and intrajudicial measures are not needed for a settlement agreement to be binding. If a claimant’s claim is a monetary claim, the parties will ordinarily agree that the settlement agreement is enforceable and, consequently, ensure that a trial regarding the existence of the claim is avoided if the settlement amount is not paid in accordance with the settlement agreement.
Sometimes the parties agree on participating in a mediation process, which can lead to a settlement agreement preventing a trial.
When proceedings are initiated by the claimant, the defendant can acknowledge and admit the claim brought by the claimant. Thus, the court will deliver a judgment in accordance with the brought claim. Often, the legal costs imposed by the court in these cases are limited. The same result can be obtained if the defendant does not submit a statement of defence.Case of no defence
What happens in the case of a no-show or if no defence is offered?
If a defendant does not observe the time limit set by the court to file a statement of defence, the court will deliver a judgment by default in favour of the claimant. As a general rule, the court will not assess whether a claimant’s claim is justified. The only significant question is whether the statement of claim has been lawfully served on the defendant in accordance with the provisions set out in the Administration of Justice Act.
The same rule will apply if the defendant (and the defendant’s representative) does not appear at the trial hearing.Claiming security
Can a defendant claim security for costs? If so, what form of security can be provided?
Generally, defendants will not be successful in claiming security of costs in Denmark.
However, a defendant can claim security for costs if the claimant is domiciled outside the European Economic Area (EEA), unless the claimant is domiciled in a country where a Danish claimant bringing a claim according to a treaty would be exempted from providing security of costs.
In cases where the claimant is an association established with the sole purpose of bringing a claim to the courts, the court can, if requested by the defendant, rule that the association must provide security for costs.
Further, in cases where a party has demonstrably delayed or is delaying the case preparations, the defendant can claim security for costs. The possibility of obtaining security for costs in these cases, however, is only rarely applied by the courts in Denmark.
As a main rule, security for costs is provided by depositing a fixed amount with the court or by providing a bank guarantee from a Danish bank with a good reputation.