DENMARK Law and Practice Contributed by: Heidi Bloch, Rasmus Tommerup and Rasmus Estrup, Kennedys
2.11 Appeal Mechanisms for Product Liability Claims With some exceptions, the two-tier principle enables all civil cases, eg, product liability cas - es, to be adjudicated by at least two courts in Denmark. If a district court or the Maritime and Commercial Court serves as the initial instance, its verdict can be appealed to the High Court without requiring special permission. Converse - ly, if the High Court acts as the first instance, its decision can be appealed to the Supreme Court. However, if a dispute is heard by the High Court as the second instance, an appeal to the Supreme Court requires third-instance leave of appeal from the Appeals Permission Board. 2.12 Defences to Product Liability Claims Various defences are available to producers in product liability cases. For instance, a pro - ducer may demonstrate that the product is not defective, in which connection a frequently used defence is expert evidence, including expert opinions on the producer’s safety and quality control of the product. The producer is exempt from liability if it can prove that the defect arises from the product’s compliance with mandatory public regulations. Additionally, a producer can - not be held liable if it can prove that, based on scientific and technical knowledge available at the time of circulation, the defect was undetect - able. Furthermore, a producer is not liable if the defect arises after the product has been put into circulation. Lastly, evidence of the claimant’s contributory negligence or assumption of risk may absolve the producer of liability. 2.13 The Impact of Regulatory Compliance on Product Liability Claims If a product fails to meet safety regulations or authorisation requirements set for that specific product, it may be deemed defective, as con -
sumers are entitled to expect a certain level of safety as mandated by relevant product legis - lation. Some products are, however, inherently associated with known adverse effects; for instance, tobacco is widely recognised for its harmful effects. Likewise, it is commonly under - stood that certain products may trigger allergic reactions. Damage resulting from an unavoid - able risk associated with using the product is not considered a defect despite non-compliance with regulation. 2.14 Rules for Payment of Costs in Product Liability Claims According to Danish procedural law, the court determines which party shall cover both court fees and legal costs associated with the case, often placing this burden on the losing party. However, the costs awarded 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 consid - erable 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-party funder meets the general require - ments for contracts under Danish law.
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