Loser Pays – But Only a Reasonable Amount
In Swedish law, there is a clear basic rule that “The losing party shall reimburse the opposing party for litigation costs unless otherwise provided.” (Chapter 18, § 1, of the Code of Judicial Procedure (hereinafter CJP). The present CJP (Rättegångsbalken,RB) was promulgated in 1942 and came into force January 1st, 1948. See http://www.regeringen.se/content/1/c4/15/40/472970fc.pdf for an English version of its wording as of 1998. The 1948 CJP replaced the Code of Judicial Procedure from 1734 (below: 1734 CJP).) Exceptions are rare, and are – leaving aside split outcomes and negligent litigation – mainly restricted to family cases and some labour disputes. The litigation costs comprise the attorneys’ fees (the most important part), the party’s own costs for work with the case or loss of income (generally a less important part) and the court costs (a non-significant part), and they are all treated in the same way. The court decides the reasonability of the costs unless the losing party expressly has accepted the amount. Before 1948, the liability to pay the costs of the other party depended on the degree of culpability of the losing party as a result of which a trial had been needed. The reason behind the present “loser pays”-rule is the principle that civil litigation protects rights. If the costs were not allocated according to how the court finally determined the rights and duties in the case, this principle would not be completely enforced. An additional reason for the rule is that it should prevent non-meritorious cases (Preparatory works in SOU (Statens offentliga utredningar) 1938:44 pp. 230–231.). The comparisons made in this project show that the Swedish system is similar to England and Wales in that attorney fees are determined by the market, that the limit of the amount shifted to the loser is defined by a broad term, “reasonability”, and that the determination of reasonability is left to the discretion of the judge (General Report I.1.a.). In these regards, the Swedish system differs from, e.g., Germany, Switzerland, or Italy, where there are tariffs for lawyers; and from other countries, e.g., Spain, where the reasonability of costs is determined as a percentage of the amount in controversy. (General Report I.1.a.) As noted in the General Report, interestingly, Sweden still seems to have much less trouble with high litigation costs and access to justice than other systems in which the determination of attorney fees is completely left to the market (See General Report II.2 and conclusion 2. I thank Professor Mathias Reimann for his overview and valuable assistance in finding an interesting topic based on Swedish law in relation to the laws of the other countries.). The reasons are not easy to identify. A vast range of issues must be taken into account, from the organization of civil procedure itself to the professional culture of judges and attorneys. As far as I have been able to find, virtually nothing has been written in Sweden taking a similar perspective (There are two doctoral dissertations about costs in civil procedure: Sigurd Wildte, Om kostnader i civil rättegång och deras gäldande, Göteborg 1931, and Ulla Jacobsson, Parts kostnad i civil process, Stockholm 1964. Neither of them has a comparative perspective similar to the one in this essay.). In this short essay, I will mainly draw on my general knowledge of the Swedish legal culture and civil procedure in general and on my own professional experience in the courts in particular (I have been a district court law clerk for two years, an appeal court law clerk for one year, a deputy district judge for two years and a served as an associate judge of appeal for one year, all this rendering me the degree of hovrättsassessor, associate judge of appeal. I have an LL.Lic. at Lund University, having researched the judicial review and judicial interpretation of laws in the Nordic countries 1809–1940, and I teach parts of the basic course in civil procedure, e.g. about litigation costs.). This means that the conclusions are, to a certain extent, speculative and vague.