Class actions in Norway

The Norwegian class actions regime was introduced in 2008 when the Norwegian Dispute Act entered into force. The general prerequisites for a class action are set forth in the Norwegian Dispute Act section 35-2. A class action can only be brought if several legal persons have claims or obligations for which the factual or legal basis is identical or substantially similar. Further conditions are that the claims can be heard by a court with the same composition and principally in accordance with the same procedural rules, and that class action procedure is the most appropriate method of hearing the claims. Another prerequisite is that it must be possible to nominate a class representative. 

A class action requires court approval. When receiving a submission, the court shall, as soon as possible, decide whether to approve or reject the class action. The court will normally decide this by a written procedure, without any oral hearings. However, the parties are allowed to make written submissions before the court’s ruling. If the class action is approved, the court shall describe the scope of the claims that may be included in the class action. Moreover, the court shall decide whether the class action shall proceed as an “opt-in” or an “opt-out” class action. If it is decided that the class action shall proceed as an “opt-in” class action, the court shall fix a time limit for registration in the class register. 

Any person with a claim that falls within the scope of the class action can register as a class member. The application for registration must, ordinarily, be submitted within the time limit stated by the court. 

Specific provisions on class actions on an opt-out basis are set out in the Norwegian Dispute Act section 35-7. The court can decide that persons who have claims within the scope of the class action shall be class members without registration, if: 

1. the individual claims involve amounts or interests that are so small that it must be assumed that a considerable majority of them would not be brought as individual actions, and 
2. the claims are not deemed to raise issues that need to be heard individually.

Persons who do not wish to participate in the class action may withdraw. The procedure and consequences if a person withdraws from a class action differs depending on whether the withdrawal takes place before or after the court has delivered a judgment in the class action suit. 

Section 35-8 in the Norwegian Dispute Act specifies the procedure for withdrawal and the consequences for those who opt-out. An individual may withdraw from a class action before the court has delivered a judgment that is binding upon the class action members, without waiving his/her substantive claim. After a binding judgment is delivered, class members’ withdrawal from the suit is more complicated. Section 35-8 provides;

“If a class member withdraws after a judgment that is binding on the class members pursuant to Section 35-11 (2) second sentence has been delivered, the further hearing of the case, if any, shall continue before the court pursuant to the rules on general procedure or small claims procedure. If the claim of a class member who has withdrawn has been decided by the court, any application for review must be made by way of individual notice of appeal. The time limit for appeal is one month after the expiry of the time limit for appeal for the class. However, if the class has appealed, an individual appeal may be filed after the time limit has expired. In that case, the notice of appeal must be filed at the same time as the notice of withdrawal from the class, and the appeal must fall within the scope of the appeal brought by the class.”

According to the Norwegian Dispute Act section 35-3, class actions may be brought by any person who fulfils the conditions for class membership. In addition, class actions may be brought by organisations, associations, and public bodies charged with promoting a specific interest, provided that the action falls within its purpose and normal scope. However, it is a prerequisite that the (natural or legal) person or organisation could have brought or joined an ordinary action before the Norwegian courts. 

The Norwegian class actions rules were introduced in 2008. There have been some notable cases, especially a class action against the largest bank in Norway (DNB). The Supreme Court ruled that approximately 180,000 unitholders were entitled to a reduction of their management fees. The reductions amounted to approximately 350 Million Kroners (approximately 35 Million Euros). 

Our impression, however, is that there are few class actions in Norway. According to Oslo District Court, 13 judgments had been delivered in class actions from 2008 to 2020. It is not clear why the class actions regime is chosen in few cases. One important explanation may be that it is deemed preferable to file a test case in order to clarify the law before filing further claims. Proceedings in similar cases may be stayed in anticipation of the final decision in the test case. This set up has several advantages, such as less administration, fewer procedural hurdles and only one set of facts that need to be established. 
At the time of publication, we are not aware of any pending changes to Norwegian class action rules. However, the Representative Action Directive may require changes (see question 9). 

In the Norwegian class actions regime, there are no restrictions on the types of class actions that may be brought or the types of claims that may be brought as a class action, as long as the ordinary procedural requirements for suits, and the criteria for class actions, are met. 

There are no specific rules on types of relief available in the Norwegian class actions regime. The general rules of Norwegian procedural law apply, including that the relief must be a legal claim, the group must have sufficient connection to the claim and the group must demonstrate a genuine need to have the claim decided against the defendant. 

The Norwegian class actions rules do not govern calculation of damages. The general rule in Norwegian law is that damages are awarded on a compensatory basis, i.e. only damages actually suffered are eligible for compensation. 

It is not possible to be awarded punitive damages in Norwegian law. This also applies to class actions. 

Norway is a member of the EEC, not the EU. Consequently, Norway must only comply with the Representative Action Directive if it is deemed relevant to the EEC. So far, this has not been decided. If the Representative Action Directive is deemed relevant to the EEC, Norwegian law will – in all probability – be changed to comply with the directive. 

A settlement in an “opt-out” class action requires the approval of the court. There are no special rules applicable to settlements in “opt in” class actions.

Only persons who could have brought or joined an ordinary action before the Norwegian courts may be class members. Disputes in international matters, i.e. where at least one of the parties or the facts of the case have connection to another country, may be brought before the Norwegian courts if:

1. the facts of the case have a sufficiently strong connection to Norway, or 
2. the Lugano Convention 2007 provides Norwegian jurisdiction for the claim.  

As mentioned above, the Norwegian Dispute Act section 35-2 imposes criteria that must be met for a court to approve a class action. A class action can only be brought if several legal persons have claims or obligations for which the factual or legal basis is identical or substantially similar. Further conditions are that the claims can be heard by a court with the same composition and principally in accordance with the same procedural rules, and that class action procedure is the most appropriate method of hearing the claims. Another prerequisite is that it must be possible to nominate a class representative. 

No, collective claims are heard by the ordinary courts in Norway. 

The ordinary rules of for discovery/disclosure apply for class actions. In principle, the parties are entitled to present and request such evidence as they wish, provided that the evidence concerns facts which are relevant to the ruling to be made. However, there are several limitations to the right to present and request evidence, inter alia restrictions on account of proportionality, prohibition against evidence subject to a statutory duty of confidentiality and exemption for evidence of trade or business secrets. 

In general, the ordinary rules for appeals apply to class actions. However, the Norwegian Dispute Act section 35-8 provides some specific rules for appeals in class action procedures where a class member withdraws from the class action. 

Only persons who could have brought or joined an ordinary action before the Norwegian courts, may be class members. This condition is not fulfilled if the claim at hand is covered by a binding arbitration clause. Consequently, it is not necessary to waive the right to class actions in an arbitration clause. 

Please note that consumers are not bound by an arbitration agreement if entered into prior to the dispute arising, cf. the Norwegian Arbitration Act section 11. 

The Norwegian class action rules do not govern fee agreements. In general, the Norwegian Bar Association’s Code of Conduct prohibits agreements where lawyers receive a percentage of the recovered amount. 'No cure no pay', 'good cure good pay' and similar arrangements, on the other hand, are permitted provided that the fee structure is reasonable and does not render the lawyer conflicted or financially dependent on the outcome. 

The ordinary rules of legal costs apply to the class actions regime. 

In principle, the party who is successful in an action is entitled to full compensation for his/her legal costs from the opposing party, provided that the costs are deemed necessary. In assessing whether costs have been necessary, the court shall take into consideration whether it was reasonable to incur these costs in view of the importance of the case. Case law also show that the courts take into assessment the proportionality between the costs and the value of the case. There are, however, some exemptions from the principle that the winning party is entitled to full compensation. For instance, the court can exempt the losing party from liability for legal costs in whole or in part if the court finds that compelling grounds justify exemption.

There is no legislation in Norway explicitly regulating litigation funding. The lack of regulation implies that litigation funding is permissible in Norwegian law. Moreover, the claim owner and funder have, in principle, contractual freedom to agree on the specifics. There are, however, some general limitations to the contractual freedom of the parties, inter alia unreasonable contractual terms may be set aside or revised by a court. 

Generally speaking, litigation funding is quite uncommon in Norway. However, in recent years there seems to be increased momentum in the market. A few firms have established themselves in the Norwegian market more recently, for instance the Swiss company Nivalion, the British company Therium and the Swedish company Kapatens Partners AB, through the Norwegian branch company Kapatens Norge AS. 

Some of these funding companies are involved in class actions. For instance Therium Capital Management Nordic are funding a large class action claim brought against two Norwegian alarm companies, Verisure AS and Sector Alarm AS. The basis for the claim is that the Norwegian Competition Tribunal upheld the Norwegian Competition Authority’s decision finding that Verisure AS had violated the Competition Act by coordinating illegally with the competitor Sector Alarm AS. The conduct at issue constituted a restriction of competition by object, and the Tribunal upheld the fine of NOK 766 million. 

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