DENMARK Law and Practice Contributed by: Heidi Bloch, Rasmus Tommerup and Rasmus Estrup, Kennedys
2.16 Existence of Class Actions, Representative Proceedings or Co-Ordinated Proceedings in Product Liability Claims In essence, product liability claims may be pursued through class-action proceedings, subject to meet - ing specific eligibility requirements. Up to now, class actions have rarely been used in product liability pro - ceedings; however, the potential rise of, for example, per- and polyfluoroalkyl substances (PFAS)-related product liability claims (see 3.2 Future Policy in Product Liability and Product Safety ) could change this and lead to an increase in product liability class actions as well. According to Danish law, a class action suit must be initiated by a group representative and meet the criteria set out in Section 254b(1) of the Administra - tion of Justice Act before the court will allow the suit to proceed. These criteria include ensuring that the claims share a similar essence and all fall under Dan - ish jurisdiction – and that at least one of the claims is within the court’s jurisdiction. Additionally, the court must have subject-matter jurisdiction over all claims, and class action must be deemed the best procedural option. Moreover, the group members must be identi - fiable and informed about the class action suit. These criteria are stringent. Specifically, the require - ment that a class action suit must be the most suitable procedural option to address a certain claim implies that the court will only issue a group certificate if no other option for addressing the claim is better suited, making this condition difficult to fulfil. 2.17 Summary of Significant Recent Product Liability Claims In 2024, the Danish High Courts rendered two judg - ments in which key statutory definitions of Danish Product Liability were subject to interpretation indicat - ing potential adverse effects on all electricity distribu - tion system operators and their insurers. Both matters concerned electricity supplied by elec - tricity distribution system operators that was over-volt - age upon delivery to consumers, causing damage to their properties. The judgments establish that electric - ity distribution companies are deemed as producers of electricity under the Danish Product Liability Act,
ful effects. Likewise, it is commonly understood that certain products may trigger allergic reactions. Dam - age resulting from an unavoidable risk associated with using a product is not considered a defect despite non-compliance with regulations. 2.14 Rules for Payment of Costs in Product Liability Claims According to Danish procedural law, the court deter - mines which party shall cover both the court fees and legal costs associated with the case, often placing this burden on the losing party. However, the costs award - ed by Danish courts typically do not reflect the actual legal expenses incurred during the proceedings. As a result, the parties involved often end up bearing a considerable portion of their own legal costs. 2.15 Available Funding in Product Liability Claims In 2017, the Danish Supreme Court endorsed the use of third-party funding at a group level. This occurred when the bankrupt estate of OW Bunker entered into an agreement with a third-party funder. The Supreme Court ruled that third-party funding was not contrary to Danish legal procedures. As a result, third-party funding of product liability claims is allowed under Danish law, and there is full contractual freedom concerning third-party funding, provided that the governing contract for the third-par - ty funder meets the general requirements for contracts under Danish law. In addition to third-party funding, alternative meth - ods of funding for product liability claims are available. These include legal expenses insurance and legal aid. Under Danish law, contingency fee arrangements are not expressly prohibited. Following revisions to the Danish Bar and Law Society’s Code of Conduct, out - come-based remuneration may be agreed, provided that the arrangement does not compromise the law - yer’s independence or integrity.
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