Product Liability 2009 - Arnold & Porter LLP

Roschier, Attorneys Ltd. Sweden
in subsequent proceedings against such third party.
3.6 Can defendants allege that the claimant’s actions caused
or contributed towards the damage?
Yes, defendants can allege that the claimant’s actions caused or
contributed towards the property damage or personal injury and
argue that the compensation therefore shall be reduced.
Compensation for personal injury may only be reduced if the
injured party’s contribution was grossly negligent or intentional if
the claim was brought under the TLA. Negligence is sufficient for
reducing a claim under the PLA.
4 Procedure
4.1 In the case of court proceedings is the trial by a judge or a
jury?
Most civil cases (including all product liability cases) are tried by a
panel of three judges. Cases regarding lesser amounts, or when the
parties consent thereto, may be tried by a sole judge.
4.2 Does the court have power to appoint technical specialists
to sit with the judge and assess the evidence presented by
the parties (i.e. expert assessors)?
Yes, in theory the court could appoint technical or other experts to
sit with the judge, although this is very rare. The court may also
appoint experts to give expert testimony (see question 4.8 below).
4.3 Is there a specific group or class action procedure for
multiple claims? If so, please outline this. Is the
procedure ‘opt-in’ or ‘opt-out’? Who can bring such
claims e.g. individuals and/or groups? Are such claims
commonly brought?
The Group Action Act sets out the procedure for dealing with
multiple claims. A group action may be initiated by (i) a natural or
legal person with a claim covered by the group action, (ii) a nonprofit
organisation representing consumer or employee interests, or
(iii) a suitable public authority (e.g. the Consumer Ombudsman).
The group action has legal effect on all members of the group, even
if they are not parties to the case.
A group action may be initiated if (i) it is based on the same or
similar circumstances for the group members’ claims, (ii) the
grounds for such claims are not manifestly different, and (iii) if the
court finds that the claims, the group and the representative are
appropriate for a group action.
The procedure is ‘opt-in’, meaning that potential group members
who, after being informed of the group action by the court, wish to
be included in the group must notify the court else be deemed to
have left the group.
Unless initiated by an authority, a group action must have a member
of the bar as counsel (which is not a requirement for any other
procedures in Sweden).
Group actions are very rare in Sweden.
4.4 Can claims be brought by a representative body on behalf
of a number of claimants e.g. by a consumer association?
Yes, see question 4.3 above.
4.5 How long does it normally take to get to trial?
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The time to trial varies greatly on the circumstances of the
particular case and between the different district courts. As a
general rule, it takes between one and three years to get to trial.
4.6 Can the court try preliminary issues, the result of which
determine whether the remainder of the trial should
proceed? If it can, do such issues relate only to matters of
law or can they relate to issues of fact as well, and if there
is trial by jury, by whom are preliminary issues decided?
Yes, when appropriate, the court may decide preliminary issues
through a separate judgment on one of several issues that are each
individually of immediate importance to the outcome of the case.
The matters thus tried may relate to issues of law, to issues of law
and fact, but not to factual issues only. There is no trial by jury and
these issues are decided by the judge or panel of judges.
4.7 What appeal options are available?
A judgment by the district court may be appealed to the court of
appeal, which will normally grant leave to appeal unless the issue is
completely clear. A judgment by the court of appeal may be appealed
to the Supreme Court. The Supreme Court will generally only grant
leave to appeal if a case is assumed to be of value as a precedent.
4.8 Does the court appoint experts to assist it in considering
technical issues and, if not, may the parties present expert
evidence? Are there any restrictions on the nature or
extent of that evidence?
The court may appoint an expert to assist it. The parties may also
present expert evidence. There are very few restrictions on
presenting evidence and evidence will only be dismissed if the court
deems it manifestly unnecessary.
4.9 Are factual or expert witnesses required to present
themselves for pre-trial deposition and are witness
statements/expert reports exchanged prior to trial?
There are no pre-trial depositions in the Swedish procedure, nor are
statements from factual witnesses used. Witness statements/expert
reports by expert witnesses are generally required prior to trial.
4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
There is no pre-trial discovery in the Swedish procedure. A party
may request the other party, or any third party in possession of
certain documents, to disclose documentary evidence at any time
during the procedure. Such a request must however be specific and
refer to a certain identified document or set of identified documents
assumed to have value as evidence and may be denied if disclosure
of the document(s) would reveal business secrets.
4.11 Are alternative methods of dispute resolution available e.g.
mediation, arbitration?
In principle, a product liability claim could be settled through
arbitration if the parties so agree. In practice, it is rare in product
liability cases as an arbitration agreement involving a consumer or
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