R-2020-35-A: Can the claimant’s declaratory claim for defendant’s liability be “countered” by the defendant with a claim regarding the measure of damages?

In a decision on 9 January 2020, the Supreme Court found 4:1 that the defendant was entitled to adjoin a claim regarding the measure of damages, even though the claimant originally had limited the proceedings only to a declaration that the defendant was liable. The minority of one justice held that the claimant could not include the measure of the damages to the case.

When filing a claim for damages, the claimant can choose to limit the proceedings to a declaration that the defendant is liable to the claimant. If the court finds the defendant liable, the measure of damages will then have to be decided through subsequent proceedings or settled amicably between the parties. The purpose of allowing this procedure is to limit the scope of the proceedings, accommodating cost-efficiency.

In HR-2020-35-A the relatives of a man who accidentally died on a group tour to Kilimanjaro, filed a claim for a declaration that a tour company and its guide were liable to the relatives. The question before the Supreme Court was whether the defendants could “counter” this declaratory claim by adjoining a claim regarding the measure of damages.

The majority of four justices noted how both the claimant and defendant, as a general rule, is entitled to include further claims to the proceedings than originally included in the statement of claim. The majority also noted how all the basic conditions to include more than one claim were fulfilled.

Further, the majority held that there was nothing in the preparatory works of the Norwegian Dispute Act or case law, which suggested that the defendant could not adjoin a claim regarding the measure of damages. In addition, the majority found that allowing the defendant to include the measure of damages would accommodate for a smooth and cost-efficient execution of the proceedings. On this background, the majority permitted the defendants’ claim for the measure of damages to be adjoined to the proceedings.

The ruling offers valuable clarification that a defendant can “counter” a claimant’s declaratory claim for liability by adjoining a claim regarding the measure of damages.

Read the decision here.