Intervention de M. Nordh (Anglais)

GROUP ACTIONS – THE SWEDISH EXPERIENCE 

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Mr. Chairman, ladies and gentlemen, dear friends and perhaps also opponents of group actions 

Thank you for inviting me to this symposium and for giving me the opportunity to meet with and listen to several experts with learned experience on what I think is one of the most important features of modern procedural legislation – group actions. 

Modern society is, as we all know, directed to­wards mass production, mass distribution, mass consumption and mass information. It is more common today than 20 or 30 years ago that large numbers of people are injured by a defec­tive product or otherwise negatively affec­ted by incidents or procedures taken. In such circumstances claims or disputes arise which are similar for a large number of people. Existing litigation procedures, the principles of which often were laid down many decades ago, are not structured with regard to this kind of dispute. They are based on an individual system where each and every citizen must seek redress on her own. Traditional two-party litigation is not equipped to handle proceedings where you have hundreds or thousands of people with the same or similar claim. Instead you need a procedure that is adjusted to the massification structure of modern society. As I see it, tradtitional two-party litigation must be complemented by a representative action. 

Group actions (in a wide sense) already exist in almost all member states in the European Union, e.g. France, Portugal, Spain and the Netherlands. Actions can be brought by organizations or public authorities, although mainly for injunctions and at special courts. However, class actions in a narrow sense, brought by an individual class member, have been non-existent in Europe so far. I am therefore proud to say that in Sweden we have been first to introduce an Act on Group Proceedings equivalent to the concepts in the USA, Canada and Australia. Norway is on the edge of introducing a group proceeding similar to our. And as this symposium indicates there is good hope that there will be more countries on this side of the Atlantic to introduce this means of improving access to justice and behavior modification, especially when it comes to the protection of collective, diffuse and fragmented interests in civil litigation. 

The work in Sweden with producing a legislation on group actions started in June 1991 when a commission was formed to examine whether there was a manifest need to improve access to justice for group claims and whether this may be achieved by the introduction of rules concerning group actions in court. In January 1995 the Commission presented a big size report (1400 pp) to the Swedish Government. 

Not surprisingly there was a strong support for the introduction of a group proceeding from representatives for consumers and the environment, while those who represent the industry were strongly against a reform. The major part of the resistance was very well organized and funded. Hard lobbying against the idea of introducing class actions in Sweden had started already before the Report was published. I was somewhat surprised that many courts opposed the proposition, on the ground that they did not see the need for a procedural reform, and this because they had no existing problems with mass litigation ! 

The criticism focused on three main issues, namely the interest of the members of the group, the defendant and the courts. Thus it was said that there was no need of a reform ; there would not be many cases enough to motivate a reform. At the same time it was held that there was a substantial risk of a floodgate effect, that the courts would drown in new lawsuits. It was also held that there were a potential risk of legal blackmail and of harm to the members of the group who would be deprived of their fundamental right to a day in court. Some focused on the influence of class actions on tort law and proclaimed that investors would flee Sweden and do business elsewhere. One must admire business in e.g. the USA, Canada and Australia surviving this mortal threat. 

These arguments are well known from all around the world and are put forward whenever a proposition of introducing group actions or improving existing rules on group procedure are presented. But the fact that the arguments are repeated over and over again does not make them stronger. On the contrary, experience from e.g. Canada and Australia shows that e.g. the fear of legal blackmail and a Floodgate effect on the courts are ill founded and far from verified in practice. 

Despite all the effort that was made to stop the proposal being transformed into legislation, in May 2002 Parliament voted for a somewhat simplified and less powerful proposal than the original one and hence gave birth to the first Swedish Act on Group Proceedings, including class actions in the narrow sense of the word. The Act has been in force since January 1st 2003. 

Time do not permit me to give you a full view of the content of the Act. Therefore I will just mention the main features and point out the more significant differences between the Act and what is generally common to group action legislation.

1. The scope of the Act

Let me first point out that the new Act is not restricted to certain areas of civil law. Any legal issue that can be litigated in the form of a traditional individual action may be taken to court as a group action. 

2. The institution of proceedings

An action for a group shall be instituted in accordance with the Code of Judicial Procedure’s general rules concerning applications to commence actions. Thus, there are no rules on any special leave to commence proceedings. There is no certification procedure.

3. Standing

The new Act contains three forms of group action, namely individual group actions (class actions), public group actions, and organizational group actions. Different forms of group actions will be able to complement and assist each other. The form that best suits the particular case may be selected. 

Individual group actions (class actions) may be commen­ced by a person who is a member of the group. This means that the plaintiff shall have standing to be a party to litigation with respect to at least one of the claims to which the action relates.  

Organizational actions are restricted to two areas of law : consumer law and environmental law. In the field of consumer law, a group action may be instituted by an affiliation of consumers or wage-earners in disputes with a tradesperson relating to goods, services or other utilities offered by the tradesperson, in the course of business, to consumers primarily for private use. 

Within the field of environmental law, non-profit associations dedicated to nature conservation and environmental protection, as well as some professional federations, are given the right to commence proceedings concerning injunctions or compensation for environmental impairment. The right to commence group actions will be open to all non-profit organizations having the objectives just mentioned. 

Finally, an authority stipulated by the government, e.g. the Consumer Ombudsman, may commence public group actions. 

4. Special conditions (prerequisites)

The new Act contains certain special conditions for cases when an action for a group should be permitted. 

One such requirement is that the suit is based on at least one fact or question of law that is common or similar to claims of the members of the group. 

Another requirement is that the court considers that the case may be dealt with effectively and purposefully. 

A further requirement is that group litigation should be the best available procedural alternative. I should emphasize that the alternative must be procedural. This means that Alternative Dispute Resolution is not an alternative in this respect. 

Furthermore, it is required that there be a group that has been adequately defined with regard to the circumstances in the case. 

A special prerequisite is that the group’s representative must be considered to be suitable to represent the group. As a further guarantee for the protection of group members in class actions and organizational actions, the proceedings must be conducted by an attorney.  

5. Group members

Contrary to the situation in Canada and most other countries, membership in the group requires that a member make an application to the court. Sadly the Swedish government chose the opt-in model instead of the elsewhere favored opt-out model. 

Those who fit the plaintiff’s description of the group shall be informed by the court, in any suitable way, about the action and provided with the opportunity to inform the court that they wish to be members. Those who do not make an application will not be bound by a future decision in the case. 

The members of a group shall not be parties to the action unless they have intervened in the group litigation. However, members are regarded as parties with respect to (for instance) evidential questions and res judicata. 

6. Settlement

Concerning settlement the group representative is empowered to make settlements with the defendant on behalf of the group. However, the settlement will be binding for members of the group only on order of the court. 

7. Litigation costs

In Sweden, we have the English rule on costs. This means that the representative of the group will take the risk of having to pay the opponent’s costs if the group loses the case. A group member, on the other hand, will bear the same risk only where the member has intervened in the litigation. 

To reduce the risk, it has been made expressly possible for a group representative and an attorney to reach an agreement on fees, meaning that the fees for the attorney shall be determined having regard to the extent to which the group members’ claims are satisfied. Such agreements are called risk-agreements, whereby fees are contingent on liability but, in contrast with practice in the USA, are not linked to quantum. The fee will be based on an hourly rate. 

8. Significance of the Act

Well, so far there have been few actions. Thus there are three group actions pending : two class actions and one public action. One class action concerns 700 air plane passengers having to buy new tickets since the travel agency could not comply with its obligations. 500 of the passengers have chosen to be group members. The second class action concerns only 7 members, each with an individual claim of approximately 20 Euro. However, there are presumable thousands more with similar claims. Why the plaintiff have chosen to limit the group to 7 people I do not know. The public action concerns electricity delivarance. The group consist of about 7 000 people with individual claims from 100 to 1 000 Euro. It is not yet clear how many of these that will finally accept being a group member. The action has been brought to court by the Consumer Ombudsman. Furthermore there has been one class action that was withdrawn by the plaintiff. The group consisted of 1.2 million insurance takers claiming compensation from the insurance company. The action was withdrawn due to the commencement of arbitration. 

Four group actions in two years do not seem to be many. At least there has been no flood-gate effect. However, the experience from Canada is similar. In Ontario a revised class action legislation was introduced in 1991. There were few cases during the early years, but since the end of the 1990’s the number has risen. However, I have spoken to the Consumer Ombudsman, and she is concerned about the opt-in model, and thinks that this seriously will restrict the use of group actions in Sweden. I am afraid that I can not disagree with her. 

Let me summarize thus. The Swedish Act on Group Actions is based on pluralism. It allows class actions, actions by organizations and public actions. It is possible to make risk-agreements on fees, but no contingency-fees and there is no public funds. Claims for injunctions as well as for damages can be brought to court as a group action. There are special conditions but no certification procedure. Membership in the group is based on opt-in instead of opt-out. 

Finally let me just say a few words about the use and the fear of misuse of group actions. 

Some say that group actions are the Eldorado for lawyers. They dig up ill-founded claims. They blackmail the defendant to settle and then they keep most of the money for themselves. 

This may be true in some cases in the USA. But I would say that what happens in the USA is more or less irrelevant to Europe. First substantive law is not the same. In Europe, or at least in most European countries, you do not risk having to pay thousands of dollars for spilling hot coffee on somebody’s lap at Mcdonald’s. Further, in the USA the court system is the traditional way to solve conflicts, while in Europe public authorities play a much more important role. Other factors to be mentioned are that the court procedure is different, so is cost rules and the use of contingency fees. 

So why this resistance, why this fear of group actions in Europe ? And I dare say that there is such a resistance and fear of group actions in Europe. 

Some say there is no need for a reform. All good claims are being met with. Well, if there is no need, there is no need to worry. There will be no group actions. 

And if there is a need, of course there will be group actions. Actions that will succeed. Defendants will have to pay. But that’s the rule of the game. If you do wrong you have to pay. If you don’t want to pay or if you can’t afford to pay, don’t do wrong. I can’t see any one seriously arguing against group actions on basis that wrongdoers shouldn’t have to pay. 

This leaves only one argument against group actions, and that is that they will lead to courtproceedings about bad, ill-founded claims. Is this risk realistic ? 

Acting as a class representative in a group action means taking a great risk of having to pay the defendants costs. If your claim is ill-founded you can’t win, so you are forced to get a settlement. Furthermore you have to find an attorney who are willing to argue your ill-founded case. There can be no contingency fee and a risk-agreement needs court approval. You also have to meet the special requirements I mentioned earlier on. Then you must get the Court’s approval of any settlement and the lawyer’s fee, if it is to be paid out of the settlement. And finally you have to share the profit with all group members 

In theory this may happen, but I doubt it. I cannot see any rational reasons to worry about group actions the Swedish way. So why not leave USA where it is and let Sweden and Norway and perhaps France stand as models for the European way. 

Thus it is my belief that the introduction of group actions in a traditional two-party litigation system will lead to

a) compensation being offered to those whose rights have been encroached but who today do not have any realistic possibility of enforcing their rights ;

b) the judicial system being able to exercise a behaviour modification function in cases where the aggregate injurious effects are extensive but the individual claims are so small that no one is inclined to take upon themselves the burden of pursuing and enforcing them ;

c) courts having sufficient information in order to make the broad balancing of interests which are a prerequisite for them to fulfil their function in relation to precedent-building, the development of law and creation of new law ; and

d) that common or similar issues in group actions relating to evidence and law are examined in an expeditious, inexpensive and uncomplicated manner, in order for the courts and parties to save time and costs. 

This does not mean that I see group actions as a final solution to all the problems in dealing with mass claims. Rules for group actions will not solve all problems in relation to access to justice. Further, future developments will make new breaches in the protection afforded. However, I am convinced that the availability of the group action will manifestly improve the capacity of the pro­cedural system to satisfy the problem presented by group claims.

 

 

 

Swedish Code of Statutes

SFS 2002:599

issued by the printers in June 2002

Group Proceedings Act

issued on 30 May 2002.

The following is enacted in accordance with a decision1 by the Swedish Riksdag.

Introductory provisions

Group action

Section 1 In this Act, group action means an action that a plaintiff brings as the representative of

several persons with legal effects for them, although they are not parties to the case. A group action

may be instituted as a private group action, an organisation action or a public group action.

Group means the persons for whom the plaintiff brings the action.

Group proceedings

Section 2 Proceedings where a group action is brought are referred to as group proceedings. Group

proceedings can relate to claims that can be dealt with by a general court in accordance with the rules

contained in the Code of Judicial Procedure on civil cases.

The provisions of the Code of Judicial Procedure on civil cases apply to group proceedings, except

for Chapter 1, Section 3 d, unless otherwise stated in this Act.

Group proceedings may also be brought in accordance with special provisions contained in the

Environmental Code.

How a group action is instituted, etc.

Competent courts

Section 3 The district courts designated by the Government shall be competent to process cases

under this Act. There shall be at least one competent district court in each county.

1 Government Bill 2001/02:107, Commissioners Report 2001/02:02:JuU16, Riksdag Communication

2001/02:246.

Right to bring an action

Section 4 A private group action may be instituted by a natural person who, or legal entity that,

himself, herself or itself has a claim that is subject to the action.

Section 5 An organisation action may be instituted by a not-for-profit association that, in accordance

with its rules, protects consumer or wage-earner interests in disputes between consumers and a

business operator regarding any goods, services or other utility that the business operator offers to

consumers.

In the first paragraph

consumers : means natural persons who acted primarily for purposes outside business operations,

business operator : a natural person or legal entity that acted for purposes that are connected with

their own business operation.

An organisation action referred to in the first paragraph may also include a dispute of another

kind, provided there are significant advantages with the disputes being jointly adjudicated taking into

consideration the investigation and other circumstances.

Section 6 A public group action may be instituted by an authority that, taking into consideration the

subject of dispute, is suitable to represent the members of the group. The Government decides which

authorities are allowed to institute public group actions.

Section 7 The right to represent the group does not end if there is a change to the circumstances on

which the right to institute the action in accordance with Sections 4-6 has been founded.

Special preconditions for proceedings

Section 8 A group action may only be considered if

1. the action is founded on circumstances that are common or of a similar nature for the claims of

the members of the group,

2. group proceedings do not appear to be inappropriate owing to some claims of the members of

the group, as regards grounds, differing substantially from other claims,

3. the larger part of the claims to which the action relates cannot equally well be pursued by

personal actions by the members of the group,

4. the group, taking into consideration its size, ambit and otherwise is appropriately defined, and

5. the plaintiff, taking into consideration the plaintiff’s interest in the substantive matter, the

plaintiff’s financial capacity to bring a group action and the circumstances generally, is appropriate to

represent the members of the group in the case.

Content of the application

Section 9 An application for a summons shall, in addition to the provisions of Chapter 42, Section 2

of the Code of Judicial Procedure, contain details concerning

1. the group to which the action relates,

2. the circumstances that are common or similar for the claims of the members of the group,

3. the circumstances known to the plaintiff that are important for the consideration of only some of

the claims of the members of the group, and

4. other circumstances that are important for the issue of whether the claims should be processed

as group proceedings.

The plaintiff shall state in the application the names and addresses of all members of the group.

Such details may be omitted if they are not necessary for processing the case. The plaintiff shall also

provide details of circumstances that are otherwise important for notifications to the members of the

group.

Change of form of action

Section 10 A person who is the plaintiff in proceedings can, by written application to the district

court, request that the case should be transformed into group proceedings. In that event, the provisions

of Section 9 and Chapter 42, Sections 2-4 of the Code of Judicial Procedure shall apply. An

application may only be granted if the defendant consents to this or if it is manifest that the advantages

with group proceedings outweigh the inconvenience that such proceedings may be deemed to entail

for the defendant.

The application shall be served on the defendant for views. If the application is unfounded, the

court may dismiss it immediately.

If the district court where a case is pending is not competent to deal with the group action, the

application shall be transferred to a competent court. If the application is manifestly unfounded, the

court may immediately reject the application instead of transferring it.

Attorneys

Section 11 A private group action and an organisation action shall be brought through an attorney

who is an advocate. If there are special reasons, the court may allow the action to be brought without

an attorney or through an attorney who is not an advocate.

Section 12 A power of attorney that relates to proceedings generally does not empower the attorney

to institute a group action or to receive a summons in group proceedings.

Notifications to the members that group proceedings have been instituted

Section 13 If the plaintiff’s application to commence group proceedings is not dismissed, the

members of the group shall be notified of the proceedings.

The notification shall, to the extent considered appropriate by the court, contain

1. a brief description of the application

2. information about

a) group proceedings as a form for processing,

b) the opportunity for the members to personally participate in the proceedings,

c) the legal effect of a judgment in group proceedings, and

d) the rules applicable to litigation costs,

3. details of the names and addresses of the plaintiff and attorney,

4. notice of the date determined by the court for notices in accordance with Section 14, and

5. information about other circumstances that are important for the rights of the members of the

group.

Definition of the group

Section 14 A member of the group who does not give notice to the court in writing, within the period

determined by the court, that he or she wishes to be included in the group action shall be deemed to

have withdrawn from the group.

Status of the member of the group

Section 15 A member of the group shall be equated with a party when applying the rules of the Code

of Judicial Procedure on disqualification situations, pending proceedings, joinder of cases,

examination during the proceedings and other issues relating to evidence.

Disqualification

Section 16 A member of the group who is not a party may, even if he or she has not entered into the

proceedings as an invervenor, present an objection regarding disqualification of a judge within two

weeks from the date when he or she became aware that the judge is participating in the processing of

the case. If the circumstance on which the disqualification is founded was not then known to the

member, the objection may be presented within two weeks from the date when the member became

aware of the circumstance.

Subsequent processing

Obligations of the plaintiff

Section 17 When conducting the action, the plaintiff shall protect the interests of the members of the

group.

On important issues, the plaintiff shall afford the members of the group an opportunity to express

their views, if this can be done without great inconvenience. If a member of the group so requests, the

plaintiff shall provide such information as is of importance for the rights of the member.

Extension of action

Section 18 The court may allow the plaintiff to extend a group action to comprise other claims on the

part of the members of the group or new members of the group, provided this can be done without it

causing any significant delay to the determination of the case and without other substantial

inconvenience for the defendant. An application for an extension of an action shall be given in writing

and contain such details as are referred to in Section 9.

Transfer of the subject to which the dispute relates

Section 19 If the plaintiff or a member of the group transfers the subject to which the dispute relates

to someone else, the provisions of Chapter 13, Section 7 of the Code of Judicial Procedure shall apply

as regard the right and obligation of such person to enter as a member of the group.

Sub-groups

Section 20 The court may assign someone, besides the plaintiff or instead of the plaintiff, to conduct

the action on a particular issue or a part of the substantive matter that only applies to the rights of

particular members of the group, if this promotes an appropriate processing. Such an assignment may

be given to a member of the group or, if this is not possible, someone else.

The parties and members of the group affected shall be given an opportunity to express their views

before the court makes a decision, provided this is not manifestly unnecessary. The court shall specify

in the decision what part of the group and the issue or part of the substantive matter that the

appointment relates to.

The provisions of this Act concerning plaintiffs also apply in relevant respects to a person that has

been appointed to conduct an action in accordance with the first paragraph.

Substitution of plaintiff

Section 21 If the plaintiff is no longer considered to be appropriate to represent the members of the

group in the case, the court shall appoint someone else who is entitled to bring action in accordance

with Sections 4-6 to conduct the group’s action as plaintiff.

If no new plaintiff can be appointed in accordance with the first paragraph, the group action shall

be dismissed. If the plaintiff is the appellant’s counterparty in a superior court, the court may appoint

someone else who is considered appropriate to conduct the group’s action as plaintiff.

Section 22 In cases other than those referred to in Section 21, another person may only take over the

plaintiff’s action if the plaintiff has transferred their part of the subject of dispute or if there are other

special reasons.

Discontinuation of group proceedings or part of them

Section 23 If the plaintiff withdraws the group action within the time period for notice, in accordance

with Section 14, the case shall be written off in its entirety. If the plaintiff, within the period,

withdraws the case regarding a part that refers to a claim of a particular member of the group, that

claim shall be written off.

Should, at the expiry of the period for notice, an issue arise concerning the writing off of the case

in its entirety or dismissal of the group action, the court shall afford the parties and the members of the

group an opportunity to express their views, unless this is manifestly unnecessary.

The second paragraph also applies if an issue arises concerning the writing off of the case or

dismissal of an action in a part referable to a particular claim of a member of the group.

Section 24 The court may decide a period within which a member of the group shall give notice to

the court in writing that they, if the group proceedings as regards their claim are discontinued, wishes

to enter as a party and bring the action concerning their rights.

If a notice concerning entry is made in accordance with the first paragraph, the court shall separate

the plaintiff’s case to which the notice applies and decide on the future processing. The court may,

subject to the preconditions referred to in Chapter 1, Section 3 d of the Code of Judicial Procedure,

decide that the case should be dealt with applying that section.

The court can transfer a separated case to another competent court, if this is best taking into

consideration the investigation and the other circumstances.

Section 25 If an appeal is withdrawn or shall be dismissed for reasons other than it having been

delivered too late, the provisions contained in Section 23, second and third paragraphs and Section 24,

first and second paragraphs shall apply.

If an appeal has lapsed owing to the plaintiff failing to attend a session for a main hearing, the case

shall be reinstated in accordance with Chapter 50, Section 22 of the Code of Judicial Procedure upon

the application of a member of the group, even if the plaintiff does not have legal excuse for their

absence. The application of the member of the group may be limited to a particular claim.

Settlement

Section 26 A settlement that the plaintiff concludes on behalf of a group is valid, provided the court

confirms it by judgment. The settlement shall at the request of the parties be confirmed, provided it is

not discriminatory against particular members of the group or in another way manifestly unfair.

Postponement of consideration of a particular issue

Section 27 If it is appropriate taking into consideration the investigation and it can be done without

significant inconvenience for the defendant, the court may issue a judgment that for particular

members of the group constitutes a final determination of the substantive matter and which for other

members of the group involves the postponement of the consideration of a particular issue.

The court shall order each member of the group for whom the case has not finally been determined

to request, within a particular period, that the remaining issue is considered. On issues concerning the

members of the group who have submitted such a request, the court shall decide in accordance with

Section 24, second and third paragraphs, on separation and concerning the future processing. If a

member of the group does not submit a request for consideration of the remaining issue, the action of

the member shall be rejected, unless the defendant has consented to the request or it is manifest that

the action is founded.

Content of the determination

Section 28 The court shall specify in a judgment the members of the group to which the judgment

refers. This also applies to a decision, if this is necessary having regard to the nature of the issue.

Legal force

Section 29 The determination of the court in group proceedings has legal force in relation to all

members of the group who are subject to the determination.

Special rules on litigation costs, etc.

Right to compensation and liability for costs

Section 30 A person who has been appointed in accordance with Section 21, second paragraph, to

conduct the action of a group as plaintiff, is entitled to compensation from public funds corresponding

to the costs for the preparation of the proceedings and the conduct of the action and also fees for

attorney or counsel, provided the costs were reasonably incurred to protect the rights of the members

of the group. Compensation shall also be paid for the plaintiff’s own work and time consumed owing

to the proceedings. A hearing for the presentation of an issue in a dispute that is directly relevant to the

action brought shall be deemed to be a measure for the preparation of the proceedings.

The court may decide on advance payment of compensation with a reasonable amount if this is

reasonable considering the amount of the costs or the work that the assignment has involved, the time

that the proceedings can be estimated to continue and the other circumstances.

Section 31 A person who has been appointed in accordance with Section 21, second paragraph, to

conduct the action of a group as plaintiff is not liable to pay compensation for the other party’s

litigation costs in cases other than those referred to in Chapter 18, Section 6 of the Code of Judicial

Procedure. Instead, the person who was previously the plaintiff in the case shall, as a party, be liable

for these litigation costs. He or she shall also compensate the State for that which has been paid from

public funds in accordance with Section 30, to the extent the appellant or someone else is not liable to

pay such compensation.

If someone has in connection with an appeal or thereafter taken over the plaintiff’s action in cases

other than those referred to in the first paragraph, he or she is liable as a party only for litigation costs

that have arisen in the superior court. For litigation costs in the lower court, the person who was

previously the plaintiff in the case shall instead be liable.

Section 32 The provisions contained in the Code of Judicial Procedure concerning liability for

litigation costs shall also be applied on issues concerning compensation from public funds that are

paid to a plaintiff in accordance with Section 30. Compensation for such costs shall be paid for by the

State. The court shall consider the issue of compensation without being requested to do so.

Liability for costs of a member of the group

Section 33 A member of the group who is not a party to the proceedings is only liable for the

litigation costs regarding such cases as referred to in Sections 34 and 35.

Section 34 If the defendant has been ordered to compensate the plaintiff for litigation costs or pay

such costs to the State as referred to in Section 32 and if the defendant cannot pay, the members of the

group affected are liable to pay these costs. The same applies to additional costs in connection with

risk agreements that the defendant has, in accordance with Section 41, not been ordered to pay. Each

member of the group is liable for their share of the costs and is not liable to pay more than he or she

has gained through the proceedings.

Section 35 A member of the group who is not a party to the proceedings should indemnify the costs

that the member has caused by any measure referred to in Chapter 18, Section 3, first paragraph of the

Code of Judicial Procedure or by such carelessness or oversight as referred to in Section 6 of the same

chapter.

Section 36 If a member has entered as a party in the group proceedings in conjunction with an appeal

or thereafter, the member is only liable as a party for the costs that have arisen in the superior court.

Separation of plaintiff’s case

Section 37 If a plaintiff’s case has been separated in accordance with Section 24, the plaintiff and the

member of the group are jointly liable for the litigation costs that have arisen prior to the separation.

The member of the group is solely liable for costs that have arisen thereafter.

If the plaintiff or the member of the group has caused the litigation costs by carelessness or

oversight, he or she shall be solely liable for the costs.

Risk agreement

Section 38 If the plaintiff has concluded an agreement with an attorney that the fees for the attorney

shall be determined having regard to the extent to which the claims of the members of the group is

successful (risk agreement), the agreement may only be asserted against the members of the group if it

has been approved by a court.

Section 39 A risk agreement may only be approved if the agreement is reasonable having regard to

the nature of the substantive matter. The agreement shall be concluded in writing. The agreement shall

indicate the way in which it is intended that the fees will deviate from normal fees if the claims of the

members of the group were to be granted or rejected completely. The agreement may not be approved

if the fees are based solely on the value of the subject of dispute.

Section 40 The issue of the approval of a risk agreement shall be considered in pending group

proceedings by the court upon the application of the plaintiff. If the legal matter covered by the risk

agreement has not been instituted at court, the person who wishes to bring the group action shall

request that the issue of the approval is considered by a court that is competent to consider the dispute.

If it is not possible to determine which court is competent, the issue of approval shall be considered by

Stockholm City Court.

An approval in accordance with the first paragraph ceases to apply, if group proceedings have not

been commenced within six months from the approval. If there are reasons to do so, the court may

extend this period.

Section 41 When considering what litigation costs are indemnifiable according to Chapter 18, Section

8 of the Code of Judicial Procedure, regard shall not be taken to such additional costs that have arisen

owing to a risk agreement.

Appeals

Section 42 When consideration of a particular issue has been postponed in accordance with Section

27, the court shall decide if the judgment may be appealed against separately regarding the part where

the determination is not final. However, such part of the judgment may in every case be appealed

against separately if an appeal, for or against a group, is made regarding the part of the judgment that

is final.

If a judgment is appealed against separately in accordance with the first paragraph, the court may

order a stay of proceedings pending the judgment entering into final legal force.

Section 43 The decision of the district court as a result of the withdrawal of the action may not be

appealed against, if the withdrawal has been made within the period for notices in accordance with

Section 14. However, a decision on issues concerning litigation costs that has been issued in

conjunction with the writing off may be appealed against.

Section 44 A decision by a district court to appoint a new plaintiff may be appealed against by the

former plaintiff and by a member of the group who has proposed another plaintiff. A decision by a

district court to reject a request for the exchange of plaintiff may be appealed against by a member of

the group who has proposed such a change. The provisions contained in Chapter 49, Sections 4 and

11, first paragraph of the Code of Judicial Procedure shall apply to issues of appeal.

Section 45 A decision by a district court during the proceedings may, in addition to the provisions of

the Code of Judicial Procedure and Section 44, be appealed against separately, if the district court has

in the decision

1. rejected the plaintiff’s request to be allowed to bring a private group action or organisation

action without an attorney or through an attorney who is not an advocate,

2. considered an issue in accordance with Section 19 concerning entry as a member of the group,

or

3. considered an issue of approval of a risk agreement in accordance with Section 39.

A person who wishes to appeal against a decision referred to in the first paragraph shall first give

notice of dissatisfaction. The notice shall be given immediately, if the decision has been issued at a

session and otherwise within one week of the date when the appellant received the decision. A person

who fails to do so is no longer entitled to appeal against the decision. If someone gives notice of

dissatisfaction, the court may declare a stay of the proceedings pending consideration of the appeal, if

there are special reasons.

Section 46 The provisions contained in Sections 44 and 45 also apply in connection with appeals

against the decision of a court of appeal that is not final on issues referred to in those sections and

which arose in the court of appeal or which have been appealed against to the court of appeal.

Section 47 A member of the group may appeal against a judgment or final decision on behalf of a

group and also a decision on approval of a risk agreement in accordance with Section 39.

A member of the group is also competent to appeal, on their own behalf, against a judgment or a

decision that concerns their rights.

Section 48 A notice of dissatisfaction by a member of the group who is not a party to the proceedings

may be made within one week of the date for the decision provided the decision has been pronounced

at a session to which the member has not been summoned nor has attended nevertheless. The same

applies if the decision has not been pronounced at a session and not served on the member.

Notifications to the members of the group

Section 49 The court shall, in addition to what is prescribed by other provisions, notify a member of

the group affected of a judgment or a final decision and also of a settlement that is subject to a request

for confirmation in accordance with Section 26.

If it is necessary taking into consideration the importance the information may be deemed to have

for the rights of the member, the court shall also notify a member of the group affected if

1. the plaintiff has been substituted with a new plaintiff,

2. the plaintiff has appointed a new attorney,

3. the plaintiff has waived the action,

4. that an issue has arisen concerning the approval of a risk agreement,

5. that a judgment or decision has been appealed against, and

6. other decisions, measures and overall situation.

Section 50 Notifications to members of the group in accordance with this Act shall be made in the

manner considered appropriate by the court and observing the provisions contained in Chapter 33,

Section 2, first paragraph of the Code of Judicial Procedure.

The court may order a party to attend to a notification, provided this has significant advantages for

the processing. The party is in such a case entitled to compensation from public funds for expenses.

The provisions contained in the second paragraph also apply when notification is given by service.

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This Act enters into force on 1 January 2003.

On behalf of the Government

GÖRAN PERSSON

THOMAS BODSTRÖM

(Ministry of Justice)