The Professional Negligence Law Review: Norway
i Legal framework
Professional liability is not a separate basis for liability, but rather a more stringent application of the law in certain situations, which may give rise to stricter liability for negligence.2 It relates to the practice of a profession, which often has particular industry-specific norms or standards.3 Industry practice is just one of several reference points for determining what constitutes 'good practice' in an area.4
The objective expectations of the professional in question is central to the assessment of liability. Whether the neglect is related to a central obligation, what damage it may cause and alternative actions available are also relevant.5 Not every deviation from proper behaviour will expose a professional to liability;6 however, limited experience is no excuse.7
The standard expected is relative to the injured party. In commercial relations, strict requirements are generally imposed on both parties. It is not the mandate of tort law to safeguard against loss for a careless party.8
One requirement for liability is that an alternative, cautious, action would have prevented the loss. The offender bears the burden of proof to substantiate that the damage would also have occurred in the hypothetical course of events.
Liability may be limited by disclaimers or reservations, but a disclaimer may be subject to adjustment if deemed unreasonable and a reservation will not provide a blanket protection to a practitioner if he nevertheless engages in the assignment.9 The professional carries the risk of any uncertainty about the scope of the assignment.10
Common lines of defence are that the loss was not caused by the negligent action or was not reasonably foreseeable, that the injured party has contributed to the damage, that the loss calculation is erroneous or that limitation periods have expired.11
There is nothing preventing third parties from claiming compensation, but where there is a contractual relationship, the professional's primary obligation will be towards the client.12 A professional may, however, be liable for misleading information provided to third parties.13
ii Limitation and prescription
The limitation period for monetary claims is three years. For claims arising from breach of contract, the limitation period runs from the date when the breach occurred.14 For other claims for damages, it runs from the date on which the injured party obtained or should have obtained knowledge of the damage and the person responsible.
A supplementary period of one year applies if the claimant lacked knowledge of the claim or the debtor.15
iii Dispute fora and resolution
Certain disputes may also be tried by low-cost advisory tribunals, which regularly consider whether applicable standards have been adhered to without taking a position on compensation.18
iv Remedies and loss
The injured party shall have his or her financial loss covered, neither more nor less.19
Especially when the claim is significant, the dispute will typically extend to the loss calculation.
If the claimant has failed to reduce the risk of or limit the damage, the compensation may be reduced or completely discounted.
Liability may be alleviated if it is unreasonably burdensome or if the injured party should bear all or part of it, but this is rare.20
Lawyers must provide security to cover any liability that may be incurred while practising under their own name,23 and must be insured against liability claims against their professional practice.24 The principal is responsible for any associates' acts or omissions. A lawyer's remuneration is not essential to the assessment of liability, whereas his or her expertise and subject area are of greater importance.25 Positive case law indicates that parties other than clients may also have legal protection against damage, depending on the circumstances.26
There are five typical errors27 that may lead to liability:
- exceeding time limits that lead to loss for the client;28
- breach of formal requirements;29
- negligent advice, especially if the lawyer has presented himself or herself as a specialist;30
- real estate errors; and
- tax consultancy.31
Although not assigned as a tax adviser, a lawyer may be expected to identify relatively simple and well-known tax law issues and refer the client to another lawyer with expertise in the area.32
A tax adviser who has inflicted financial loss on the state may be subject to damage claims.33 To date, there are only a few examples of this in case law.34 In Norway's largest criminal tax law case (the Transocean case), the state argued that Transocean's advisers were liable for damages of 1.8 billion kroner according to the general standard of culpability.35 As the defendants were acquitted on all charges, the court did not take a position on the civil claim, but a district court stated in another case that to hold the lawyer responsible for the loss there must be qualified negligence.36
A case widely debated in the legal community concerned negligent legal advice to a bank regarding a new insurance exemption clause in connection with helicopter leasing agreements. The bank's insurance claim was rejected when its client became insolvent, and its lawyers were held liable for not having clearly pointed out the insolvency exemption.37
The Court of Appeal referenced a previous case where an auditor should have clearly pointed out to the client that a particular tax strategy entailed a significant risk that the purpose of the strategy would not be achieved.38 The subject area was, according to the Supreme Court, an area where stringent requirements are imposed.
There are good reasons to differentiate between subject areas. Tax legislation, limitation rules and formal requirements are statutory and thus relatively available.39 The situation is less straightforward in contractual negotiations, where a myriad of clauses may be up for discussion, including clauses posing only theoretical or commercially acceptable risks. Case law, however, suggests that lawyers may be held liable even towards professional clients.
In the Helicopter case, the burden of proving that clear oral advice had been provided was placed on the lawyers, contrary to the claimant's general duty to substantiate the claim. As the lawyers also had to substantiate that the bank would have entered into the agreements in the hypothetical set of circumstances, they ultimately bore a double burden of proof.40
Although careful conduct by the bank would have prevented the loss, the court explicitly dismissed the bank's omissions as grounds for exempting the lawyers from liability but reduced the damages by 60 per cent.
The decision quickly set a precedent as it was referenced by the district court in another case concerning negligent advice related to a stock sale agreement, where the client was awarded almost 89 million kroner in damages.41
In addition to the compensation cases, a claim for the presentation of a lawyer's time sheets and invoices was not accepted in one case.42 The duty of confidentiality was applicable and the documents were subject to a prohibition of evidence. It was not considered relevant whether the lawyer had attempted to be exempted from the duty of confidentiality by asking his client to do so.
It has been suggested by a legislative committee that the strict duty of confidentiality for in-house lawyers be relaxed and that tax advisers be required to disclose aggressive tax planning arrangements to the authorities,43 in accordance with the Organisation for Economic Co-operation and Development's base erosion and profit shifting (known as BEPS) Action 12.44 Failure to comply would be sanctioned with a fine.
ii Medical practitioners
It is not a condition that a particular individual must be proven to be at fault; however, the patient is entitled to the best possible treatment based on the existing conditions.47
Whether or not inadequate information constitutes a basis for compensation must be considered with regard to the risk of disease in the near future.48
Compensation may be awarded for non-financial loss if the injury is permanent and significant.49 Breach of confidentiality may constitute an infringement of privacy that provides a basis for redress in certain circumstances.50
Mental injuries for dependants may be protected by tort law if the circumstances represent a particular strain beyond the loss of, or damage to, the child.51
In the event of a breach of the duties to provide professionally sound healthcare and to avoid unnecessary use of resources, the Board of Health Supervision may issue a warning.52
iii Banking and finance professionals
Financial entities are subject to statutory requirements for prudent operation and good business practice. Investment firms shall also safeguard the integrity of the market in the best possible manner.53 Debt collectors must furnish security for liability incurred in the conduct of their activities.54
A customer may demand highly qualified and specialised advice. The service provider must supply the information necessary to fulfil relevant requirements, analyse relevant information based on the customer's needs and communicate the results to the employees who carry out the assignment. The customer must be made aware of the risk associated with the investment decision.
Unless it has been expressed that the customer will not place significant reliance on a bank's advice, the requirement for diligence will apply regardless of the customer's level of knowledge.55 Special circumstances, such as the needs expressed by the client, the parties' different positions and professionalism, and their insight into the relevant field, may, however, be relevant.56 When selling risky and complex products to non-professional investors, the customer must understand the contents of the deal and not be furnished with misleading or erroneous information that affects the investment decision.57
The Financial Services Complaints Board deals with insurance, banking, financing, securities funds and debt collection disputes.58
iv Computer and information technology professionals
These professionals essentially operate in an unregulated area; however, there are supervisory authorities for electronic trust services and data protection legislation.59 It is customary to include insurance obligations in computer and technology contracts.60
v Real property surveyors
The ethical guidelines for appraisers include requirements for liability insurance and assignment confirmations.61 An appraiser may be held liable for negligence to the buyer of a property,62 to the seller or to the seller's insurance company directly,63 or to a third party.64 Appraisers are expected to comply with decisions of the Complaints Board for Appraisers.65
vi Construction professionals
Construction law is subject to freedom of contract within the boundaries of consumer legislation and statutory public law requirements.66 It is common that standard contracts adapted to different project types require the contractor to provide liability insurance. For consumers, the contractor must guarantee fulfilment of new building contracts.67 Specialist commissions may handle disputes.68
A contractor's work must be performed in a professional manner that safeguards the principal's interests.69 Industry norms, practices, safety rules and standard contracts may serve as guidance for the liability assessment. Subcontractors do not have to carry out all possible investigations and calculations before the work is carried out as this would seriously affect pricing and would be prohibitive.70
If an enterprise approves a project that is not in accordance with granted permissions or applicable legislation, it may be held liable to governing authorities, the principal and third parties.71
An architecture firm acting as the responsible applicant for a building project that had significant defects had not appointed a planner responsible for buildings and installations, a failure that the Supreme Court held to be sufficient to conclude that the firm's employees had caused the buyers' loss by negligence.72 The buyers' interests were protected by tort law, inter alia, because of the severity of the firm's breach of duty and the character of the defects, and the buyers were awarded damages equalling the repair costs.
Different circumstances resulted in a contrasting conclusion in a subsequent case against a firm that had signed a declaration of control.73
A seller of a residential building was unsuccessful in a claim against two appraisers. She had already been held liable to the buyer for a price reduction because of a construction deficiency not mentioned by the appraisers in their valuations. The Supreme Court agreed that the strict duty to disclose circumstances that the seller 'knew or had to know' under Section 3-7 of the Alienation Act was not relevant to the appraisers' liability, as opposed to the duty of care pursuant to the general professional liability. The appraisers could not, however, have been expected to discover the construction deficiency without any information on the relevant use of the building having been given in advance.74
vii Accountants and auditors
The legislation applicable to auditors and accountants contributes to ensuring the quality of financial reporting. However, auditors and accountants perform different functions and have different roles.75
Annual auditing gives certainty for those who make decisions in reliance upon financial statements. Auditors must meet strict standards to obtain the approvals required for professional practice. They must act with professional scepticism and ask critical questions.
Liability for negligence and security requirements are determined by statute.76 The liability will be particularly strict for the auditor's core tasks;77 however, not every breach of 'good auditing practice' will constitute negligence.78
As is the case for lawyers, auditors may be held liable for the state's financial loss from tax evasion or losses suffered by other third parties.79
The framework for an audit engagement is statutory, whereas an accountant's assignment is determined by contract.80 In one case, an accountant was released from having to indemnify a client who had paid a counterfeit invoice.81 Checking invoice details was not part of the accountant's assignment and the forgery was not so conspicuous that failing to discover it would be a breach of the duty of care and loyalty, although in hindsight it was easy to see that it was a forgery. In another case, an accountant was held liable for not discovering that the actual balance between a seller company and its subsidiaries in a share transfer was 3 million kroner higher than stated and consequently not taken into account when determining the debt assumed by the buyer company. The accountant had not made the inquiries that could reasonably be expected of him, but the selling company had to accept a reduction in the amount of compensation.82
The element of negligence was not found in a case where the court held that a loss was not caused by an auditor's lack of information that value added tax was to be calculated in the audit assignment for a bankrupt development company to which a real estate company had granted loans.83
For cases concerning an auditor's negligent advice outside his or her statutory duties, the assignment will be central for the liability assessment.84 In contrast to auditors, accountants cannot comment the accuracy of accounts or initiate reporting to third parties.85
Auditors are required to document how an audit was conducted, and the result of it, to support and enable testing of their conclusions.86 It may otherwise be difficult to substantiate that a proper audit has been conducted.
The Financial Supervisory Authority may control that audits are compliant with applicable legislation and standards.87 Negative findings may support an injured party's claim for damages.
viii Insurance professionals
An insurance broker's main task is to identify the client's risk exposures and seek optimal insurance coverage.88 Brokers are independent and not party to the insurance agreement.89 Brokering activities entail complicated risks and incorrect advice may cause damage.90 Authorisation is thus conditional upon fulfilment of applicable insurance requirements.91 If the claim concerns a contract between the parties, it is a condition for compensation that there is a breach of contract and that the broker has acted negligently.92
The complaints board for insurance and reinsurance brokerage provides advisory decisions in disputes between clients and insurance brokerage firms.95
A policyholder may expect the insurer to strictly adhere to the terms and conditions.96 The client is not necessarily required to investigate the insurance terms closely if he or she has a legitimate expectation that a new insurance policy covers the same damage as the previous policy.97
Year in review
There has not been ground-breaking case law in the past year, but jurisprudence has contributed to the further development of professional liability in several areas.
For example, a claim for 10 million kroner in damages against a lawyer was successful at first instance but reversed on appeal. The lawyer was allegedly responsible for a client's purchase of machinery and equipment that was seized shortly afterwards by the previous owner's bankruptcy estate, but the Court of Appeal did not consider the lawyer to have acted negligently by not raising an uncertain legal question in the theoretical event of bankruptcy.98
In another case, an allegation that a lawyer was responsible for contributing to the fulfilment of a court settlement to which it was not a party was not upheld. The plaintiff was the lawyer's client's counterparty and it was held that any liability for damages would be conditional on there being qualified blameworthy conduct on the part of the lawyer.99
The sale of property off market can be a profitable but also risky business for the seller. In a recent case, the Court of Appeal found that although a seller will often feel significant pressure in deciding whether to accept an off-market bid, this does not transfer the decision-making process to the real estate broker.100
Outlook and future developments
There is a tendency for compensation claims to be used in an attempt to shift financial losses on to professionals to a greater extent than previously.101 The emergence of litigation funding (i.e., provision of cash to litigants or attorneys to fund their litigation in exchange for a portion of any awarded damages if the case is won) may also contribute to an increase in the number of disputes.
The future will show the extent of the impact of the coronavirus pandemic; for example, in connection with an expected increase in bankruptcies, alleged negligent advice on how to regulate non-performance of contractual obligations as a result of the pandemic, insurance-related matters or more generally on the number of cases brought before the courts. Increased use of mediation and arbitration may, however, lead to decreased publicity.
Furthermore, stringent claims of documentation will probably continue to be applied by the courts.
When assessing liability, a greater emphasis on an injured party's own (gross) negligence could perhaps reduce the number of disputes regarding professional liability.102
Ongoing legislative projects may affect professional liability in certain areas.103
1 Karoline Solheim Kreyberg is a senior lawyer at Wikborg Rein Advokatfirma AS, currently working as an overseas manager for Wilhelmsen Ship Management.
2 Truyen, Filip, 'Aksjeanalyse og informasjonsansvar', Tidsskrift for Rettsvitenskap 2007 pp. 101–102.
3 Breach of such standards may be a basis for disciplinary action; see Section 1.1 of the Regulations of 20 December 1996 No. 1161 for advocates.
4 Conduct in accordance with industry practice was not enough to release the insurer from liability in Supreme Court case HR-2006-537-a, Paragraph (40).
5 LB-2017-95730; see Rt. 2014-422 Paragraph 31 and LB-2017-50988.
6 Rt-1995-1350, on p. 1356. See also Ivaran Rt-2003-696 Paragraph 43.
8 Hagstrøm and Stenvik, 'Erstatningsrett' (2015) p. 472.
9 As an example, the reservation made by the defendant lawyers in LB-2018-27239 did not exempt them from liability. The appeal was not allowed to the Supreme Court, cf. HR-2019-1131-U.
10 The Bar Association's comments to Section 3.1.1 of the Regulations for Advocates.
11 The ordinary conditions to be awarded damages will apply regardless of the label of the basis for liability: the claimant must have suffered a financial loss that was predictable to the defendant and caused by his or her negligent actions or omissions.
12 For instance, in Rt-1995-821, a lawyer was acquitted of a compensation claim based on the argument that he should have neglected the duty of care in relation to a party that was not his client.
13 The conditions for such liability are that (1) the information must have been misleading because of negligence on the part of the person who provided the information in a professional context, (2) the injured party must have had a reasonable and justified reason to trust and adhere to the information, and (3) it must have been intended for the injured party or a limited group to which he or she belonged; see Grue Savings Bank HR-2016-2344-A Paragraph 40.
14 HR-2019-2034-A Paragraph 53.
15 Sections 1,2 3, 9 and 10 of Act No. 18 of 18 May 1979 relating to the limitation period for claims.
16 See the Act of 17 June 2005 No. 90 relating to mediation and procedure in civil disputes (the Dispute Act). The courts of Norway have general jurisdiction and the number of specialist courts is negligible. Some cases must be heard by the conciliation board in the first instance, but the board shall, inter alia, not hear cases against public authorities or institutions, or certain cases decided by a tribunal.
17 For example, Oslo District Court assisted in a successful judicial mediation for several weeks in the spring of 2015. The case concerned an auditing client's claim for compensation in the billions against one of the Big Four accounting firms. The mediation thus saved both parties from months or probably years of being tied up in the court system, with all the procedural uncertainty and use of resources that extensive proceedings of this kind usually entail.
18 If a tribunal finds that a professional has breached applicable legislation or standards and the case is not settled, this may encourage the injured party to file a claim for damages before the courts.
19 Section 4-1 of the Act of 13 June 1969 No. 2 relating to compensation in certain circumstances (the Damages Act). There is no room for punitive damages; however, in some cases a more symbolic compensation for non-financial loss may be awarded; see Chapter 3 of the Damages Act.
20 See Section 5-1 and 5-2 of the Damages Act and NOU 2017:15 p. 185. The risk of recourse claims from the professional's insurance company is not decisive.
21 The Bar Association's Disciplinary Council deals with complaints about fees and breaches of the Code of Conduct and its decisions can be appealed to the publicly appointed Disciplinary Board; see https://www.advokatforeningen.no/om/om-medlemskapet/english/the-norwegian-bar-association/. The Lawyer Licensing Board and the Supervisory Council for Legal Practice also exercise supervisory and disciplinary authority in relation to lawyers; see Sections 225 to 227 of the Act relating to the Courts of Justice of 13 August 1915 No. 5 (Court of Justice Act).
22 NOU 2015:3 p. 311. The discretionary assessment of whether a lawyer has violated the code cannot, however, be assessed by the courts; see NOU 2015:3 p. 317.
23 The security may not be used to cover liability for which the lawyer has provided other statutory security; see Section 222 of the Courts of Justice Act and Section 2 of the Regulations for Advocates. The collateral must be higher for lawyers who have authorised associates or who are engaged in debt collection activities or real estate brokerage; see Section 2-7 of the Act of 29 June 2007 on estate agency and Section 2-2 of Regulation No. 1318 of 23 November 2008 on Real Estate Broking.
24 Section 3.6 of the Code of Conduct in Chapter 12 of the Regulations for Advocates.
25 Union Lawyer LG-2019-41853.
26 It has been argued that the relationship between the plaintiff and the client must be examined (i.e., whether or not the third party has interests similar to those of the client); see Husabø, 'Advokatrolleforventningar – med særleg fokus på skatterådgiving', FEST-2002-nn-115, on p. 125. See TOSLO-2019-136137 as a recent example from case law.
28 Rt-1998-740. LB-2018-54687 illustrates that although failure to comply with the time limit for appeal is negligent, the client must substantiate that the court of appeal would have ruled in favour of the client.
29 Rt-1989-1318. It is set out in Section 3.1.4 of the Code of Conduct that a lawyer should not undertake an assignment when he or she knows or should know that he or she lacks the necessary skills or if he or she is unable to consult with a suitably qualified colleague. This does not apply, however, if within a reasonable time the lawyer ensures that he or she acquires the knowledge or competence necessary for a professionally responsible execution of the assignment.
30 Wågheim, 'Advokaters erstatningsansvar' (2009), p. 158.
31 The largest claims received by insurance companies are often linked to inadequate tax advice.
32 Husabø, on p. 121.
33 NOU 2009:4 'Measures against tax evasion', Section 10.11.2.2.
34 For example, LE-1996-420 and LB-2013-191777.
35 See Oslo District Court's judgment of 2 July 2014 (TOSLO-2011-104857-4 – TOSLO-2011-191007).
36 The lawyer was acquitted by the district court and settled with the state before the appeal case; see LB-2013-191777, according to which he paid 800,000 kroner. The amount was deducted from the state's financial loss when calculating its claim against the other defendants.
37 Helicopter LB-2018-27239. The appeal was rejected by the Supreme Court; see HR-2019-1131-U.
38 KPMG Rt-2002-286.
39 The same applies to legislation related to the working environment and dismissals; see Union Lawyer LG-2019-41853.
40 In LB-2005-150175, the Court of Appeal's opinion was that there was no reason for the insurance broker to document in writing what was considered and not recommended or what was recommended beyond what the policyholder chose for insurance coverage. The Court of Appeal thus took a more pragmatic stand on the question of documentation of advice.
41 In TOSLO-2018-129819 the lawyers argued that clients must ask questions and address unclear issues, and that lawyers must assume that draft agreements and documents are read and understood. The court agreed that lawyers do not have a general duty to double check that the client has not forgotten or misunderstood an element of an agreement that was subject to negotiations at an early stage; however, in the circumstances of the case, inter alia that one of the partner's colleagues had pointed out the liability-inducing misunderstanding to him twice, the court concluded that it was negligent not to address the issue with the client. The decision is enforceable.
42 LB-2019-162384. The appeal was rejected by the Supreme Court in HR-2020-146-U.
43 A committee has in NOU 2019:15 suggested amendments to Act No. 14 of 27 May 2016 relating to tax administration.
45 The Norwegian System of Patient Injury Compensation.
46 NPE determines the contribution amount according to the Regulations on the Scope of the Patient Injury Act (FOR-2008-10-31-1166). Complaints against NPE s on compensation can be filed with the Patients' Injury Compensation Board within three weeks. A claim for compensation may be brought before the courts within six months of the Board's final decision; see Section 18 of the Patient Injury Act. After this deadline, the decision has the same effect as a legally enforceable judgment. For a graphic presentation of the claim proceedings, see https://www.npe.no/globalassets/bildearkiv/grafisk/slik-er-saksbehandlingen/slik-er-saksbehandlingen-engelsk_320.jpg. Violations of requirements protecting patients from injuries may be brought before the County Governor, who may determine whether the requirements have not been complied with, and direct criticism at healthcare personnel. The contribution obligation follows from Sections 7 and 8 of the Patient Injury Act; see Section 20 of the Health Personnel Act. Anyone who intentionally fails to comply with the NPE notification or grant obligations is punished by fines or imprisonment of up to three months. Recourse can only be claimed against a person who has failed to pay subsidies or caused damage intentionally. The compensation will be calculated in accordance with the Damages Act and applicable case law. Financial loss below 10,000 kroner and redress under Section 3-5 of the Damages Act are, however, not compensated by NPE; see Section 4 of the Patient Injury Act.
47 Section 2 of the Patient Injury Act.
49 i.e., of a duration of at least 10 years and causing medical disability of at least 15 per cent.
50 See NRK Rt-2006-799, where redress under Section 3-6 of the Damages Act was awarded. The Supreme Court did, however, state that one should be cautious about imposing such liability on professional practitioners who make difficult decisions in pressured situations.
51 HR-2018-2080-A. See https://lovdata.no/pro/#document/HRENG/avgjorelse/hr-2018-2080-a-eng.
52 See the decision of the Appeal Board for Health Personnel in HPN-2019-3004.
53 See Sections 1-3 and 13-5 of the Act of 10 April 2015 on financial institutions and financial groups and Section 10-9 of the Act of 29 June 2007 No. 75 on Securities Trading. Other relevant legislation includes the Act of 25 November 2011 on Securities Funds and the Act of 20 June 2014 on Alternative Investment Fund Management.
54 Section 29 of the Act of 13 May 1988 No. 26 on debt collection and other recovery of overdue pecuniary claims (Debt Collection Act); see Section 3-2 of the Regulation No. 562 of 14 July 1989 on Debt Collectors.
55 Ideal Rt-2000-679.
56 Fearnely Rt. 2003-400 Paragraph 39 and Rt-2003-1524 Paragraph 28.
57 Røeggen Rt-2013-388 Paragraph 125, with reference to Fokus Bank Rt-2012-1926.
58 https://www.finkn.no/English. When a complaint is being dealt with by the Board, neither party may bring the case before the courts, except in cases of legal enforcement or interim court orders to secure a claim. An institution that does not intend to comply with the advisory decision must submit a report specifying the reasons for refusal.
59 There are some provisions on liability in special legislation; see the Act of 15 June 2018 No. 44 on Electronic Trust Services and the Act of 12 December 2018 No. 116 relating to the processing of personal data respectively. The Norwegian Communications Authority has supervisory authority for electronic trust services. The Norwegian Data Protection Authority supervises compliance with data protection legislation; see Section 22 of the Personal Data Act. The Authority's decisions may be appealed to the Privacy Appeals Board.
60 Pursuant to clause 15-2 of the Norwegian State Standard Agreements for IT Procurement, the contractor shall hold insurance policies that are sufficient to meet the claims from the customer as may arise from the risks and responsibilities assumed by the contractor pursuant to the agreement. See https://www.anskaffelser.no/verktoy/contracts-and-agreements/utviklings-og-tilpasningsavtalen-ssa-t.
61 The new ethical rules took effect from 1 January 2019 and are harmonised with current European standards, including the European Valuation Standards (2016); see https://www.norsktakst.no/norsk/om-norsk-takst/regelverk/etiske-retningslinjer-og-regler-for-god-takseringsskikk/, which address ethical issues associated with the appraiser's business and apply as collective regulations for all certified practitioners in the Norwegian Taxation Association; see, inter alia, Sections 2.8 and 6.1.
62 See Section 18.104.22.168 of Prop.44 L (2018–2019).
63 Rt-2008-1078. The liability may also be divided between the seller and the appraiser's insurance companies; see Rt-2015-556.
64 In LB-2018-180420, two appraisers were held liable for compensating a bank's loss for insufficient collateral. They had negligently assessed the market value of a property, which was later foreclosed on for a much lower amount.
65 The Complaints Board for Appraisers deals with consumer complaints against association members in connection with appraisal assignments relating to housing and holiday homes. See www.takstklagenemnd.no/.
66 See the Act of 14 June 1985 No. 77 on Planning and Building and the Act of 27 June 2008 No. 71 relating to Planning and the Processing of Building Applications (the planning Part).
67 Section 12 of the Act of 13 June 1997 No. 43 on contracts with consumers regarding the construction of a new building site.
68 The Housing Dispute Committee has been established by agreement between the Housing Producers' Association and the Consumer Council in accordance with Section 64, Paragraph 3, of the Building Act. For the Consumer Disputes Commission, see Section 1, Paragraph 1 b) of the Act of 17 February 2017 No. 7 relating to consumer complaints. See also https://www.forbrukerklageutvalget.no/information-in-english/. The Consumer Disputes Commission's decisions become binding and enforceable one month from the time the decision is served, unless one or both parties file a suit with the district court within the deadline; see Section 12; see Section 7 of the Consumer Complaints Act; see Section 6-2, Paragraph 1 e) of the Dispute Act.
69 Section 7 of the Act of 13 June 1997 No. 43 on contracts with consumers regarding the construction of a new building site and Section 5 of the Act of 16 June 1989 No. 63 on craftsmen services, etc., for consumers.
70 See LB-2020-67205.
71 See Bori Rt-2015-276 (dissenting judgment: 3-2), Bori 2 HR-2017-1834-A, LB-2017-184360 (appeal to the Supreme Court denied in HR-2019-1004-U), and HR-2020-312-A .
72 HR-2020-312-A; see Section 2-1 of the Compensatory Damages Act.
75 NOU 2017:15 p. 17.
76 Liability for negligence is set out in Section 11-1 of the new Auditors Act (No. 128 of 20 November 2020). An audit firm shall be jointly and severally liable with an auditor who has performed an assignment on its behalf. Chapter 3 of the Regulations No. 712 of 25 June 1999 on auditing and auditors; see Section 3-7 No. 4 of the Auditors Act, setting out security requirements.
77 For example, correct processing of questions about the calculation of value added tax lies within the auditor's primary responsibility; see HR-2008-1154-A Paragraph 39. See also Grue Savings Bank HR-2016-2344-a Paragraph 58.
78 Ivaran Rt-2003-696 Paragraph 47; see Section 5-2 of the Auditors Act.
79 NOU 2009:4 'Measures against tax evasion', Section 10.11.2.2 and LB-2013-191777. Arguments against alleviation may be that the actions or omissions have a great ability to create damage and have damaged public interests; that preventive considerations strongly oppose alleviation; and that auditors have insurance opportunities, security and capital reserves. For liability towards other third parties, see Grue Savings Bank HR-2016-2344-a.
80 The preparation of annual accounts shall be carried out in accordance with generally accepted accounting principles; see Section 4-6 of the Act of 17 July 1998 No. 56 relating to Annual Accounts.
84 NOU 2017:15 Appendix 1 Section 2.
85 NOU 2017:15 p. 31.
86 Section 9-9 of the Auditors Act.
87 Section 1 of the Act of 7 December 1956 No. 1 on the Supervision of Financial Institutions etc. (Financial Supervision Act). The Authority conducts audits on the basis of its own risk assessments, reports and other signals such as media reports.
89 The Act of 10 June 2005 No. 41 on Insurance Mediation (the Insurance Mediation Act) applies to the mediation of direct insurance and reinsurance, including insurance brokers; see Section 1-1 and 1-2.
90 In case LB-2008-87925, the Court of Appeal found that the conditions for compensation were fulfilled, since the broker had not done enough to investigate the market conditions before giving advice. An example of an insurance broker being acquitted of liability is found in Court of Appeal case LB-2005-150175. The appeal to the Supreme Court was denied; see HR-2007-1282-U. In Dombås Hotel Rt-2011-1198, the Supreme Court held that the insurance broker, who had given incorrect information to the insurance company about the area measurements of a hotel that had burned down, had held a dual role because he not only represented the hotel, but also performed an extensive amount of work for the insurance company. He could therefore not be said to have acted only on behalf of the hotel and there was no basis for identification between the broker and the hotel.
91 See Section 2-2 No. 3, 4-1 and 4-2 of the Insurance Mediation Act; see Section 2-1 of the Regulations No. 1421 on Insurance Mediation (2005-12-09 No. 1421).
92 LB-2008-87925, LB-2020-15107.
93 Section 5-2 of the Insurance Mediation Act. In addition, the ethical guidelines apply to members of the Norwegian Insurance Brokers Association.
94 Sections 5-4 and 5-5 of the Insurance Mediation Act; see Section 3-1 of the Insurance Mediation Regulations. In LB-2005-77427, the Court of Appeal found that the negligent act had been committed within what must be regarded as the core of the brokerage business: to convey an acceptance or a refusal from an insurance company to an insured person. The appeal to the Supreme Court was denied; see HR-2006-2125-U.
gjenforsikringsmeglingsvirksomhet/. As long as a dispute is considered by the board, it cannot be brought before the courts; see Section 5-2 of Regulations No. 1421 on Insurance Mediation and Section 9-1 of the Insurance Mediation Act.
96 The Supreme Court case HR-2006-537-a concerned compensation for loss as a result of the delayed transfer of an individual pension agreement to another pension facility, which should have been transferred once this was practically possible. A misunderstanding does not exempt the insurer from liability for loss resulting from misconduct regarding a contractual obligation towards the customer. The insurer had to replace losses incurred as a result of the savings being retained in equity funds in a market with falling prices.
97 FinKN-2018-698; see FinKN-2012-646.
100 LB-2019-169235, with a broad review of relevant sources of law, including HR-2018-1234-a. The case has been appealed to the Supreme Court. In LB-2018-155934, the court did not even consider whether the conditions for compensation against a settlement broker's liability insurance company for losses after investing in a real estate project were fulfilled, as the claimant's own conduct was highly clandestine and the dominant factor in the case.
101 See for example https://www.advokatforeningen.no/radgivning/klientforholdet/profesjonsansvar/ and LF-2018-91155, where the Court of Appeal found that the neglect of the architectural firm was grossly negligent. There was a causal connection between the negligence and the loss, and the claim for compensation could be pursued by the home buyers as third parties in accordance with the Supreme Court's directions in Bori Rt-2015-276. See also LF-2016-114800.
102 The injured party's deeds may be relevant not only to reduce damages, but also to eliminate the basis of liability; see Nygaard, 'Skade og ansvar' (2007) p. 303. The case referred to in RG-1988-468 may serve as an example. The Supreme Court briefly addressed the question in Grue Savings Bank HR-2016-2344-A Paragraph 64 and stated that the expectations of the professional's role will be relevant.
103 e.g., the new Acts for advocates (to be submitted to Parliament in April 2021), auditors and accountants; see respectively NOU 2015:3 and NOU 2018:9.