i Legal framework
In Danish law, a claim for professional negligence can be brought under a contractual or non-contractual relationship.
Contractual claims usually arise when the professional is required to complete a task under a contract and has failed to do so.
Non-contractual claims usually arise from an act or omission contrary to a profession's standard of good practice. Such a standard can have various sources, such as statute,2 Ministerial Orders and rules of professional bodies.
The general comparator used is that of the reasonably competent professional. However, the comparator when providing specialist advice is usually that of the reasonably competent specialist.
As regards the standard of proof, there is no general rule and it is usually for the plaintiff to establish the standard,3 which is often done by asking the court to appoint an expert.
Common defences against professional negligence claims, whether contractual or not, include lack of proof, estoppel and failure to bring a claim in time.
Exclusion of liability is possible only in contract. Such contractual exclusion must be reasonable and is invalidated by gross negligence or intention to cause damage.
ii Limitation and prescription
The Limitation Act4 is the principal act for limitation periods, including claims pertaining to professional negligence. In general, the limitation period is three years,5 from breach of contract for contractual claims,6 or from when the negligent act occurred for non-contractual claims.7 If the plaintiff is factually unaware of the claim, the limitation period normally commences from when the plaintiff becomes or should have become so factually aware,8 but the period can only be extended in this way up to a maximum of 10 years (30 years for personal injury claims).9
iii Dispute fora and resolution
Depending on the profession, there are disciplinary boards, which assess whether a professional has or has not acted in accordance with the rules of his or her profession, and there are complaints boards, which assess a professional's service, mainly in cases brought by consumers. Not every profession has a disciplinary board or a complaints board, and certain professions have a combined board.
Where the boards exist, they are often the first step when resolving a professional negligence dispute, and they each have their own rules of procedure.
If a claim of professional negligence is not assessed at a disciplinary or complaints board, or a party is not satisfied with such an assessment, a party can generally bring a claim before the Danish courts, and such a claim does not differ from other claims under Danish law. The Administration of Justice Act applies,10 and the claim normally begins at the competent district court. The court is not bound by a board's decision.11
Arbitration is often used to resolve construction disputes, but arbitration and mediation are not common dispute fora for professional negligence otherwise.
iv Remedies and loss
The remedies generally available to the parties depend on whether a claim is brought in contract or not.
For a contractual claim for professional negligence, a plaintiff generally has two options. The first is to be placed in the position as if the contract had been completed, and the second is for the plaintiff to be placed in a position as if the contract had never been entered into, both through an award of damages.12 If there has been a contractual material breach, termination is also possible.
For a non-contractual claim, the general remedy is to place the harmed party in the position as if the harm had not occurred. Remedies include damages and injunctions.
For all damages for professional negligence, causation and remoteness principles apply, there is a duty to mitigate loss,13 and one cannot be unduly enriched from a negligent act.
II SPECIFIC PROFESSIONS
Each profession is often distinct and complex in how it approaches professional negligence. For comparison purposes, the sectors below focus on details such as applicable legislation, professional bodies, standards of good practice, disciplinary and complaints boards, and insurance.
The Administration of Justice Act sets out the conduct required of a lawyer, which includes completing a task thoroughly, in good conscience and with the appropriate client care.14 The Danish Bar and Law Society is the body that expands upon this standard of good practice to include rules on client privilege, conflicts of interest, fees, confidentiality, etc. The professional body for lawyers is the Association of Danish Law Firms, which works for the interests of law firms, their owners and employees.
The Danish Bar and Law Society has a combined disciplinary and complaints board, a decision of which is, unusually, final for a client. In other words, only the lawyer can contest a case in the courts that has already been decided by the board.15
Lawyers are required to have liability insurance of a minimum 2.5 million kroner, including for a period of five years after giving up practice.16
ii Medical practitioners
The Act on Complaints and Claims in Healthcare17 covers negligence within the medical profession. Section 19 of the Act states that it generally covers every treatment of a healthcare professional who is a part of the Danish healthcare system. There are various professional bodies that work for the interests of their members; the example for doctors is the Danish Medical Association.
The Act sets out where medical professional negligence differs from other professions. For example, there is a statutory standard of proof for a successful claim for damages, namely more than probable;18 and the Act states that even if the professional is a generalist, the relevant comparator is an experienced specialist.19
There are three boards in the Danish healthcare system: one disciplinary; and two complaints, of which the first is for compensation and the second is for compensation appeals. It is these boards, along with two advisory boards,20 that contribute to the understanding of what is the standard of good practice for medical professionals.
Private medical practices, hospitals and clinics must have liability insurance of a minimum of 20 million kroner per year,21 but public practices (run by the state, municipalities, etc.) are not obliged to have such insurance.22
iii Banking and finance professionals
The relevant standard of good practice is derived from Chapter 6 of the Act, which sets out the requirement for financial businesses to act in accordance with good business practices. As regards specific activities, the standard is at times further developed by Ministerial Orders.25
There are various bodies that further the interests of banking and finance professionals; two examples are the Danish Insurance and Pension Association, and the Finance Society (the latter for banks' employees). There are also different complaints boards for different financial activities (e.g., mortgages and investment funds).
One example of liability insurance within this sector concerns investment advisers, who must be covered at a minimum of 7.5 million kroner per negligent act and at a minimum of 11.2 million kroner for the combined number of negligent acts, per year.26
iv Computer and information technology professionals
There is not one act, standard of good practice or insurance scheme that applies to the whole sector of computer and IT professionals; disparate pieces of legislation apply. Legislation to bear in mind when looking for a standard of good practice, and if related to the case, includes the Act on Electronic Communications and Services,27 which sets out rights and obligations regarding internet access and the electronic provision of information or content. For considerations of data fraud, the Criminal Code contains relevant sections.28
There are certain bodies such as the Danish ICT Industry Association and the Telecom Industry Association that comment on legislation and play a lobbying role for their members, in a similar manner to the above-mentioned Danish Insurance and Pension Association, and the Association of Danish Law Firms.
There are no disciplinary or complaints boards specifically only for computer and IT professionals, and so disputes would proceed directly to the courts, unless otherwise decided by the parties. If the case concerns data protection breaches, they can be forwarded to the Danish Data Protection Agency.
v Real property surveyors
Real property surveyors are not a specific profession in Denmark. Various professions cater for real property in Denmark and this section focuses on real estate agents and building experts.
The tasks of real estate agents include appraising, negotiating sales and purchases, contacting mortgage providers and drafting sale contracts. A principal task of a building expert is to draft the structural survey in connection with a property's sale.
The Danish Association of Chartered Estate Agents represents real estate agents and the Act on Sale of Real Property regulates these agents as regards consumer cases.29 Section 24 of the Act sets out the standard of good practice, and Chapter 5 provides specific rules for areas that could give rise to professional negligence claims (e.g., Section 27 sets out rules for the appraisal of property and Section 35 sets out rules for conflicts of interest). Real estate agents have both a disciplinary board and a complaints board.30
Ministerial Order No. 1537 of 9 December 2015 provides the basis for the requirement that real estate agents must have liability insurance, of a minimum amount of 3 million kroner per year.31
As regards building experts, the relevant legislation is the Act on Licensed Building Experts with its related Ministerial Order.32 Section 11 of the Ministerial Order sets out in specific terms how building experts should conduct their work, which provides a basis when considering the standard of good practice. The Association for Building Experts and Energy Consultants is an applicable professional body.
The building experts' combined board comes under the Danish Enterprise and Construction Authority,33 and assesses cases regarding whether building experts have or have not fulfilled their obligations pursuant to the Act on Licensed Building Experts and to the Act on Consumer Protection when Buying Real Estate.34 The board can criticise, caution and fine building experts up to 100,000 kroner, as well as assess contested structural surveys.
Building experts' liability insurance for structural surveys is required to be that ordinarily attainable in the insurance market, for a period of five years after the sales connected with the building expert's survey.35
vi Construction professionals
There is no general legislation under Danish law that governs the relationships between the parties in a construction project.36 Instead, a government committee comprising both governmental and non-governmental members has developed sets of default general contractual conditions. Examples include a set for building and construction works and supplies (AB 18),37 and a set for design and build contracts (ABT 18).38
Section 12 of both AB 18 and ABT 18 sets out a standard of good practice that is the default if nothing specific is set out in the contractual terms or otherwise agreed by the parties. The standard is that work must be of a professional quality. How this quality is assessed depends on each construction profession's requirements regarding applicable legislation, rules, guidelines, customs, etc.
Pursuant to Section 11(1) of both AB 18 and ABT 18, insurance must be bought by the client for fire and storm damage, and the contractor must have the usual liability insurance.39 However, further insurance can be made part of the agreement, and this was usually the case because the default set out in the earlier AB 92 and ABT 93 conditions was generally seen as insufficient.40 It remains to be seen whether this practice will continue under the new AB 18 and ABT 18 terms.
Section 69 and Section 67 of AB 18 and ABT 18 respectively set out arbitration as the default dispute resolution mechanism, which parties often leave unchanged when adapting the conditions.
Outside the general contractual conditions, three complaints boards are relevant; one deals with electricians and plumbers, and two others deal with construction professionals such as painters, masons and carpenters, where the cost of construction is not greater than 1 million kroner.
For a professional body, the Danish Construction Association is one that comments on new legislation and is an employers' organisation, comprising as members: major building contractors, small and medium-sized construction companies and manufacturers of building components.
vii Accountants and auditors41
The standard of good practice is influenced by applicable legislation, such as Section 361(2) of the Companies Act as regards accountants within limited liability companies42 and Section 16 of the Act on Approved Auditors and Audit Firms, which requires skills of accuracy and swiftness, as adapted to the particular task.43 The standard is partly defined by the code of conduct of the regulatory and professional body of the Institute of State Authorised Public Accountants. The Institute has an expert committee, to which parties can pose questions, and a court can take the committee's answers into account when deciding the standard.
The disciplinary board for accountants is the Account Practices Board,44 to which claims can be brought regarding an accountant's statements and his or her related advice.
Accountants are obliged to hold insurance when acting within the scope of the Act on Approved Auditors and Audit Firms. Accountant companies with fewer than 10 qualified accountants must have a minimum cover of 2 million kroner, and companies with 10 or more must have a minimum cover of 20 million kroner, per year.45
viii Insurance professionals
Insurance companies are included in the Financial Business Act.46 The Act on Insurance Brokerage applies to independent insurance brokers.47 These brokers have a separate standard of good practice48 and a separate professional body, the Danish Association for Insurance Brokerage. The complaints board for independent insurance brokers is the Insurance Complaints Board.
According to Section 20(1) of the Act on Insurance Brokerage, an insurance broker shall hold professional indemnity insurance covering potential financial claims resulting from the business. The minimum cover is 9,325,475 kroner per negligent act and at least 13,801,703 kroner for the combined number of negligent acts, per year.49
III YEAR IN REVIEW
The following are two recent cases concerning professional negligence. The first highlights the stringent requirements for finding negligence under Danish law and the considerations had when establishing these requirements. The second highlights a strict condition for obtaining damages, that of a direct causal link between the negligent act and the loss, and confirms a shift away from a trend that softened this condition, if negligence had been clearly found.
i Real property sector50
The plaintiffs were members of a cooperative housing association and the defendant had assessed the value of the association's property.
As at the end of 2005, the defendant valued the property at 40 million kroner, which the plaintiffs used as a basis to transfer their shares. Owing to a neighbouring property's 2006 selling price, the plaintiffs rather valued the association's property at just over 85 million kroner, and claimed damages.
On appeal from the district court, the Eastern High Court gave judgment in 2018. The High Court found that valuations during 2005–2006 were subject to uncertainty owing to large and partly speculative sales, and that the defendant's calculation method had been used by assessors and experts, and there was no basis to find that it could not be used. Accordingly, the High Court held that the assessment had not deviated from what was professionally justifiable and acquitted the defendant.
In early 2019, the Supreme Court affirmed the High Court's decision, highlighting the stringent criteria required to find negligence in the case, namely there were fundamental errors or defects in the assessment, or that the assessment resulted in a manifestly incorrect valuation. After considering the relevant legislation and the guidelines from the Danish Association of Chartered Estate Agents, the Supreme Court found that there were no errors in the defendant's calculation method and that the valuation was not manifestly incorrect, owing to the sales uncertainty at the time.
The case not only confirms the high threshold when finding professional negligence, it also highlights the role of legislation and professional bodies' guidelines when a court establishes whether that threshold has been met.
ii Legal sector51
In 2006, the plaintiffs purchased a property for 2.275 million kroner, for which the defendant acted as their lawyer. The plaintiffs intended to use the property as a holiday home. As the property was in an all-year residence area, the municipality required the plaintiffs to regularise the property's use. The plaintiffs subsequently brought an action for damages.
Both the district court and the Eastern High Court found that the defendant had not proven that he had provided the plaintiffs with the necessary advice regarding the use of the property, and so found him negligent. The question for the Supreme Court concerned the amount of damages and it confirmed that the plaintiffs' loss must be determined on the basis of what would place them in the economic position they would have been in if correct advice had been given. The plaintiffs claimed the difference in the purchase and sale prices, and other costs such as for maintenance and for selling the property.
The Supreme Court found that, if correct advice had been given, the plaintiffs would have bought a similar property in the same area that could have been legally used as a holiday home. As the fall in value did not appear to arise from the property's use, and as the claimed maintenance costs would not have differed significantly from the costs for a holiday home, both did not result from the negligent advice and so were not payable. However, the court found that the costs for selling the property were a consequence of the negligent advice and so were payable.
The judgment highlights the strict condition that to succeed in obtaining damages, it is not sufficient that an adviser has acted negligently and that a loss has occurred, there must also be proven a direct causal link between the negligent act and the loss.
IV OUTLOOK AND FUTURE DEVELOPMENTS
The recent court cases emphasise the stringent requirements when finding liability and when obtaining damages in professional negligence cases in Denmark. Regarding the construction sector, it is still to be seen with interest how the new AB provisions, which came into effect last year, will influence cases. Lastly, 2019 saw the reporting of two large auditing firms to the Public Prosecutor for Special Economic Crimes owing to not warning authorities about potential money laundering risks at banks. The reporting is unusual because the Danish Financial Supervisory Authority is usually considered responsible for monitoring such risks, and a bank's auditor was not previously understood to bear this responsibility.
1 Jacob Skude Rasmussen is a partner and Andrew Poole is a dispute resolution consultant at Gorrissen Federspiel. The authors acknowledge the valuable assistance of assistant attorney Morten Melchior Gudmandsen in producing this chapter.
2 For example, regarding lawyers, see Section 126 of the Administration of Justice Act, No. 1284 of 14 November 2018.
3 See Bo Von Eyben and Helle Isager, Lærebog i Erstatningsret, 8th ed. (Copenhagen: Jurist- og Økonomforbundets Forlag, 2015), p. 129f.
4 Act No. 1238 of 9 November 2015.
5 See Section 3(1) of the Limitation Act.
6 See Section 2(3) of the Limitation Act.
7 See Section 2(4) of the Limitation Act.
8 See Section 3(2) of the Limitation Act.
9 See Section 3(3)(1)–(4) of the Limitation Act.
10 Act No. 1284 of 14 November 2018.
11 For example, regarding accountants, see Lars Bo Langsted, Paul Krüger Andersen and Lars Kiertzner, Revisoransvar, 8th ed. (Copenhagen: Karnov, 2013), p. 500.
12 See Mads Bryde Andersen, Grundlæggende Aftaleret, 4th ed. (Copenhagen: Gjellerup Forlag, 2013), p. 100f.
13 See Vibe Ulfbeck, Erstatningsretlige Grænseområder, 2nd ed. (Copenhagen: Jurist- og Økonomforbundets Forlag, 2010), p. 113.
14 See Section 126 of the Administration of Justice Act.
15 See Sections 147d and 147e of the Administration of Justice Act.
16 See Section 61 of the articles of association of The Danish Bar and Law Society, which implements Section 127 of the Administration of Justice Act, and is approved by Ministerial Order No. 907 of 16 September 2009.
17 Act No. 995 of 14 June 2018.
18 See Section 20(1) of the Act on Complaints and Claims in Healthcare.
19 See Section 20(1)(1) of the Act on Complaints and Claims in Healthcare.
20 One for the disciplinary board and one for the complaints boards, see Sections 12 and 12a of the Act on Complaints and Claims in Healthcare respectively.
21 Subject to further qualifying factors, see Section 8 of Ministerial Order No. 488 of 3 May 2018.
22 See Sections 30 and 31 of the Act on Complaints and Claims in Healthcare, and Kristina Sprove Askjær, Peter Jakobsen and Niels Hjortnæs, Erstatning Inden for Sundhedsvæsnet, 2nd ed. (Copenhagen: Karnov, 2017), p. 383.
23 Act No. 457 of 24 April 2019.
24 See Sections 1 and 5 of the Financial Business Act.
25 For example, see Ministerial Order No. 1581 of 17 December 2018 on good business practice in real estate credit lending.
26 See Section 3(2) of Ministerial Order No. 653 of 30 May 2018.
27 Act No. 128 of 7 February 2014.
28 For example, see Section 279a of the Criminal Code, Act No. 1156 of 20 September 2018.
29 Act No. 526 of 28 May 2014, see Sections 1 and 2.
30 See Chapter 7 of the Act on Sale of Real Property.
31 See Section 4 of Ministerial Order No. 1537 of 9 December 2015.
32 Act No. 1532 of 21 December 2010 and Ministerial Order No. 1426 of 30 November 2016.
33 See Section 2 of the Act on Licensed Building Experts.
34 Act No. 1123 of 22 September 2015.
35 See Section 4(1)(5) of Ministerial Order No. 1426 of 30 November 2016.
36 See Torsten Iversen, Entrepriseretten (Copenhagen: Jurist- og Økonomforbundets Forlag, 2016), p. 50.
37 AB 18 is intended to replace the earlier AB 92, which may still be agreed between parties.
38 ABT 18 is intended to replace the earlier ABT 93, which may still be agreed between parties. For reference, ABR 18 also replaced the earlier ABR 89, which concerns consultancy services for building and construction works.
39 See Section 11(3) of both AB 18 and ABT 18. 'Usual' suggests the market standard.
40 See Torsten Iversen, Entrepriseretten (Copenhagen: Jurist- og Økonomforbundets Forlag, 2016), p. 278.
41 For the purposes of this section, auditors fall under the description for accountants.
42 Act No. 1089 of 14 September 2015.
43 Act No. 1287 of 20 November 2018.
44 See Ministerial Order No. 727 of 15 June 2016, pursuant to Section 47 of the Act on Approved Auditors and Audit Firms.
45 See Sections 3(1)(6) and 3(4) of the Act on Approved Auditors and Audit Firms and Section 8(2)–(3) of Ministerial Order No. 1536 of 9 December 2015.
46 See Section II.iii of this chapter.
47 Act No. 41 of 22 January 2018.
48 See Ministerial Order No. 455 of 30 April 2018.
49 The insurance rules are set out separately and in more detail at Section 3(1) of Ministerial Order No. 481 of 3 May 2018.
50 Eastern High Court decision of 16 February 2018 in case No. B-642-17, reported in the Danish law journal on construction law: TBB 2018.483. Supreme Court decision of 27 March 2019 in case No. 119/2018, reported in the Danish weekly law reports: U.2019.2221 H.
51 Supreme Court decision of 29 November 2018 in case No. 49/2018, reported in the Danish weekly law reports: U.2019.840 H.