Summaries of rulings 2018
21 December 2018
Criminal law. Patient data. Unlawful acquisition.
The penalty for violation of section 67 cf. section 21 (a) of the Health Personnel Act was stipulated to a fine of NOK 15 000, alternatively 15 days of imprisonment. The convicted person, who was a retired consultant physician and Professor Emeritus had been engaged as a private expert by an insurance company in a case between the company and claimant. Through his access to the hospital's computer system, he had acquired data from the claimant's medical record that he had not received from the insurance company. The Supreme Court found that the physician had acted with gross negligence. It concerned violation of a clear provision adopted several years earlier with the purpose of protecting patients' interests. The physician himself was highly educated and an experienced professional in an area where confidentiality is essential and where stricter requirements of due care apply.
Supreme Court HR-2018-2452-A (case no. 18-157498STR-HRET), criminal case, appeal against judgment
20 December 2018
Damages. Self-defence. Counsel switch in hearing of civil claims.
A defendant under section 274 subsection 2 cf. section 273 had been acquitted in the court of appeal after claiming self-defence. In the defendant's perception, the aggrieved party had lifted his arm to hit, and the defendant had reacted by hitting the aggrieved party hard on the chin, with the result that the latter fell and incurred serious injuries. In the action for damages, the Supreme Court found that section 1-4 second sentence of the Compensatory Damages Act did not prevent liability for acts of self-defence against the person from whom the threat came. The acquittal did also not prevent the aggrieved party from bringing a civil claim for damages against the defendant. The Supreme Court agreed, based on the court of appeal's description of the situation, that the defendant's reaction had to be characterised as grossly reckless. Both parties had switched counsel before the Supreme Court, and the Court held that the wording in section 100 subsection 3 and section 107 (e) should be interpreted to also apply when counsel are replaced during the hearing of the civil claim.
Supreme Court HR-2018-2427-A (case no. 18-072545SIV-HRET), civil case, appeal against judgment
20 December 2018
Tax law. Termination fee. Business activities. The surrogatum principle.
The parent company of a Norwegian group, which had agreed to acquire all the shares of an American company, received a substantial termination fee after the shareholders of the American company rejected the bid. The Supreme Court found that the termination fee was taxable as business income to the parent company, see section 5-1 subsection 1, cf. section 5-30 of the Tax Act. The company's activities in the capacity of parent company met the requirement of business activities. The share purchase agreement that had triggered the payment of the termination fee, was also part of the core activity of a large, listed parent company, so there was a close connection between the company's business activities and the attempted acquisition. The exemption method under section 2-38 of the Tax Act was not applicable, as there was no basis for an extended interpretation of the provision. As a result of various legal arguments during the tax assessment and before the courts, the state was not awarded costs.
Supreme Court HR-2018-2433-A (case no. 18-082393SIV-HRET), civil case, appeal against judgment
18 December 2018
Law of wills. Will. Testamentary contract.
In a joint will, the spouses had decided that the predeceased spouse's children from an earlier marriage were to inherit estate originating from her family. The Supreme Court found, like the lower instances, that the survivor, who had acquired the joint estate undivided, was not entitled to dispose of this estate by will after his spouse's death. Even though it did not clearly appear from the joint will that these dispositions were irrevocable, it had to be interpreted to mean that the survivor was not to dispose of estate that had been disposed of to the advantage of the predeceased spouse's heirs. It was held that circumstances not explicitly mentioned in the document had be included in the interpretation to clarify what the testator meant when drawing up the will, but that there must be strong reasons for concluding that the testator had meant to bind the testamentary capacity. The surviving spouse died while the case was being heard in the Supreme Court, and the Court concluded that his heirs had a legal interest in upholding the appeal.
Supreme Court HR-2018-2424-A (case no. 18-070825SIV-HRET), civil case, appeal against judgment
14 December 2018
Tort law. Land-use regulation. Redemption.
A housing property located close to a planned freight depot for the National Rail Administration had been re-regulated for industry. The contact between the land owners and the municipality with the aim of transferring the property resulted in nothing. A planning process with the purpose of re-regulating the property to housing was also not completed. The land owners' subsequent claim against the municipality for compensation for economic loss did not succeed before the Supreme Court. Due weight was given to the fact that the municipality had not, at any point in time, been entitled to make requirements towards the Rail Administration on redemption of the property. The municipality had thus not acted unlawfully. The fact that the municipality had tried to protect the interests of the landowners by, among other things, recommending redemption could not justify any claim on the grounds that redemption could not be carried out.
Supreme Court HR-2018-2388-A (case no. 18-083932SIV-HRET), civil case, appeal against judgment
Criminal law. Restraining order. Fitness studio.
The court of appeal had acquitted a man of charges under section 168 of the Penal Code, cf. section 222 of the Criminal Procedure Act. At a fitness studio where both he and the aggrieved party worked out, he had on one occasion entered the studio and worked out despite his knowledge that the aggrieved party was already there. The Supreme Court found, like the court of appeal, that the restraining order had not been violated. It was emphasised that the fitness studio was relatively large with many people, that the defendant had been working out at some distance from the aggrieved party and that he had not approached nor sought eye contact with her. Thus, he had not followed, approached or contacted her in any way. The prosecution authority's appeal against the court of appeal's application of the law was dismissed.
Supreme Court HR-2018-2395-A (case no. 18-147700STR-HRET), criminal case, appeal against judgment
12 December 2018
Employment law. Employment relationship. Contracting of services. Hiring of labour.
As a step in a substantial restructuring process, the employment of pilots and cabin crew in an airline company was transferred from the parent company, which no longer would be responsible for operational activities, to separate pilot and cabin crew companies in the group. During an interim period, the pilots had been transferred to a subsidiary carrying out parts of the operating activities. The pilots and the cabin crew did not succeed in their claim that the parent company was their employer. The pilots were also not heard in their claim that also the subsidiary in which they had been temporarily employed was their employer. The Supreme Court found that the supply of pilots and cabin crew to the parent company had to be considered contracting of crew services rather than mere hiring of labour, as the latter would have been unlawful under section 14-12, cf. section 14-9 of the Working Environment Act. It was emphasised that the company in which they were employed, conducted the day-to-day management of the activities, and that the assignment had been clearly defined in advance. Nor did they succeed with their contention that the parent company had to be regarded as an employer on special grounds alongside the company in which they were employed, see section 1-8 subsection 2 of the Working Environment Act.
Supreme Court HR-2018-2371-A (case no. 18-042829SIV-HRET), civil case, appeal against judgment
10 December 2018
Criminal law. Attempted homicide. Sentence. Preventive detention.
The penalty for violations of section 233, cf. section 49, cf. section 229 first penal option of the Penal Code 1902 and section 275, cf. section 16 of the Penal Code 2005, was preventive detention with a time frame of 11 years and a minimum term of seven years and four months. The convicted person was convicted of two attempted homicides, among other things. On the first occasion, he had stabbed the aggrieved person in the neck with a knife with serious physical and mental consequences for the aggrieved party. On the second attempt, he had tried to hit the aggrieved person with an axe. He had previously been convicted several times of violence and had had behavioural problems from an early age. Despite signs of improvement in prison, there was an imminent risk of him committing new acts of violence after a possible release. There were no clear indications that the alternative time-limited prison sentence could constitute adequate protection of the public.
Supreme Court HR-2018-2339-A (case no. 18-118524STR-HRET), criminal case, appeal against judgment
10 December 2018
Tax law. Surtax. Loss carry-forward.
A limited company had made a considerable loss in 2011, and utilised parts of it in 2012, 2013 and 2014. In 2011, there had been a transfer of ownership in the company, which had not been stated in the tax return for that year. When the tax authorities learned of the transfer, they disallowed the loss carry-forward, as it appeared in 2011, in accordance with section 14-90 of the Tax Act. A surtax for 2011 was imposed equal to 30 percent of the tax that would have been saved if the loss had been fully utilised that year, see section 10-4 (3) of the Tax Assessment Act. The Supreme Court found that surtax could be imposed under section 10-2 (1) of the Tax Assessment Act if incorrect information is given regarding loss carry-forward, regardless of whether the tax advantages were realised in a year different from the year the incorrect information was given. The term "tax loss" in section 10-4 (3) also covers cases where the loss made in the relevant year is due to loss carry-forward from earlier years. The calculation rules in section 10-4 (3) were also not a basis for a restrictive interpretation of the provision's area of application. The Court held that section 10-4 (3) of the Tax Assessment Act has been continued without substantive changes in section 14-5 of the Tax Administration Act. The Court found in favour of the tax authorities (Skatt Øst).
Supreme Court HR-2018-2338-A (case no. 18-102326SIV-HRET), civil case, appeal against judgment
10 December 2018
National insurance law. Sick pay.
A patient was put on a sick leave diagnosed with "situational mental imbalance", after the patient's son had fallen seriously ill. Later, the sick leave was extended, following a conflict between the patient and her employer. The Supreme Court found that it had not been substantiated that the patient herself had been ill. She was therefore not entitled to sick pay under section 8-4 subsection 1 of the National Insurance Act. Due weight was given to the contemporaneous evidence. Neither the medical journal nor supplementary letters from the GP to NAV regarding the relevant sick leave period contained information on symptoms and function level that showed that the patient had had an "illness" within the meaning of the law. Due weight could thus not be given to the supplementary information from the GP and the patient before the court of appeal three years later. The Court found in favour of the state represented by the Directorate of Employment and Welfare.
Supreme Court HR-2018-2344-A (case no. 18-057336SIV-HRET), civil case, appeal against judgment
10 December 2018
Purchase of real property. Lot. Defect. Building ban.
Following the sale of a lot for housing purposes bordering on a main road, the Public Roads Administration rejected an application for exemption from the building ban under section 29 subsection 2 of the Roads Act, with the consequence that the lot could not be built on. The Supreme Court found, unlike the lower instances, that the sellers had to carry the risk of the consequences of this failure. The Court mentioned first that also regulatory control restrictions could be considered a defect under section 3-8 of the Alienation Act. In its individual assessment, the Court held that the application for division of the lot had not been presented to the Public Roads Administration before it was approved. The parties also agreed that a division permit would not have been granted if the opinion of the Public Roads Administration had been procured. Thus, already at the time of the division there were circumstances suggesting that an exemption from the building ban would not have been given. Then, also the basis for putting the lot out for sale for housing purposes also failed. The consequence of this failure had to be taken by the sellers. Hence, there was a defect under section 3-8. The buyers succeeded in their claim for annulment.
Supreme Court HR-2018-2346-A (case no. 18-100490SIV-HRET), civil case, appeal against judgment
5 December 2018
Criminal law. Sentence. Written descriptions of sexual assault against children.
The penalty for violation of section 204a subsection 1 (a) of the Penal Code 1902 and section 311 subsection 1 and section 266 of the Penal Code 2005, was stipulated to one year of imprisonment. The convicted person had, for a period of three years, chatted with 15 persons via Skype. In the chats, he described fictitious, sexual assaults against his own children. Some of them appeared to be self-experienced. He also participated in chats that sexualised children. On several occasions, he had pretended to be his own wife and shared pictures of her, which constituted a serious invasion of her privacy. The penalty for the chats was stipulated to four-five months of imprisonment and the penalty for the offence against the wife was stipulated to eight months of imprisonment. Dissenting votes 4-1.
Supreme Court HR-2018-2315-A (case no. 18-129264STR-HRET), criminal case, appeal against judgment
29 November 2018
Criminal procedure. Judge's directions to the jury.
In a jury case under section 274 subsection 1, cf. section 273, of the Penal Code, the jury was asked an additional question whether the bodily harm was serious in the sense that death was the outcome. The judge's directions had not been written down, but they had been recorded on the defence counsel's phone. The Supreme Court held that the judge's directions to the jury were flawed in terms of the additional question. They had not given proper guidance, in particular with regard to the culpability requirement and the adequacy requirement. The directions to the jury were generally inaccurate and unclear, which contributed to a confusing overall impression. The errors could undoubtedly have caused the jury to answer yes to the additional question, see section 343 subsection 1 of the Criminal Procedure Act. The court of appeal's judgment and hearing were set aside.
Supreme Court HR-2018-2281-A (case no. 18-116808STR-HRET), criminal case, appeal against judgment
28 November 2018
Copyright. Availability to the public. TV channels.
RiksTV AS is a commercial undertaking distributing TV channels through the terrestrial network. The Supreme Court found, like the lower instances, that this distribution involved making a work available to the public, see section 2 subsection 3 of the Copyright Act 1961 and section 3 subsection 1 (b) of the Copyright Act 2018. RiksTV AS was thus liable towards TONO AS, which manages the copyright to musical works on behalf of the right holders, for loss caused by the distribution of the relevant TV channels. It was emphasised that "available to the public" must be interpreted widely and flexibly, and that the sources of law suggest that it covers any form of spreading of intellectual work regardless of technical solution. The Broadcasting Act and Regulations on broadcasting activities, as well as the agreement with the broadcasters, under which the use of copyrighted material must be cleared with the right holders, could not give any other result. The same applied to EU case law. Nor was the undertaking covered by the exception for technical services and equipment.
Supreme Court HR-2018-2268-A (case no. 2018/233), civil case, appeal against judgment.
27 November 2018
Contracting law. Direct claim against sub-adviser.
In connection with a large rehabilitation project, a contractor had engaged an architect firm as adviser. The architect in turn engaged two sub-advisers. After the architect firm's bankruptcy, the contractor made a claim for damages for defective projecting directly against the sub-advisers. The Supreme Court's majority of three justices found that the contractor did not have a non-statutory right to make a direct claim, as that would entail obligations for third parties. The parties had also used a standard contract that did not regulate direct claims. They were professional parties that had to take the consequences of their choice of contract form. Nor did policy considerations suggest that the contractor had a right to make a direct claim against the sub-advisers. Dissenting votes 3-2.
Supreme Court HR-2018-2256-A (case no. 18-036844SIV-HRET), civil case, appeal against judgment
20 November 2018
Criminal law. Criminal procedure. Civil claims. Binding effect. Limitation.
A defendant in a case regarding sexual assault withdrew, during the appeal proceedings, his appeal against the district court's ruling on the aggrieved party's claim for damages. After a further appeal, he was acquitted by the Supreme Court's Appeal Selection Committee, as the offence was time-barred. In the subsequent proceedings regarding the claim for damages, the Supreme Court concluded that the withdrawal of the appeal against the district court's ruling in the claim for damages did not entail that this issue had not been decided with binding effect. Decisive emphasis was placed on the closeness between the demand for punishment and the claim for damages. The evidence presented before the district court and the court of appeal had not been suited to the relevant subject of review under section 9 (1) of the Limitation of Claims Act, and the Supreme Court found that it could not hear the limitation issues as a first instance. The Court also decided that the court of appeal, in the new hearing, was only to review whether the claims were time-barred.
Supreme Court HR-2018-2203-A (case no. 18-112409STR-HRET), criminal case, appeal against judgment.
20 November 2018
Health law. Compulsory mental health care. Discharge. Competence to give consent.
A woman who had been under forced mental health care for almost seven years under section 3-3 of the Mental Health Care Act, due to a schizoaffective disorder, a mixed manic-depressive type, requested to be discharged. During the last five years, the force had consisted of attendance every four weeks for depot medication. The Supreme Court found, like the lower instances, that the woman had no real insight into her own situation and did not understand the consequences of terminating the treatment. The requirement regarding competence to give consent was thus met, see section 4-3 subsection 2 of the Patient and User Rights Act. It was also highly likely that her condition would become worse by seponating the medicine, although it was doubtful that the deterioration would occur within three to four months after the discharge, as the Act requires. Following an overall assessment under section 3-3 (7) of the Forced Mental Health Care Act, the Supreme Court found, with considerable doubt, that the discharge request had to be complied with. Emphasis was placed on the treatment for nearly five years being limited to maintenance, on the doubt related to the time aspect of the deterioration requirement and on the legislature's stressing of patients' self-determination.
The Supreme Court HR-2018-2204-A (case no. 18-112246SIV-HRET), civil case, appeal against judgment
16 November 2018
Civil procedure. Contract law. Enforcement. Rent clause.
An industrial company leased an industrial building from a municipal undertaking. The rent was stipulated to be similar to "the lessor's documented annual gross expenses". In a dispute before the district court concerning reimbursement of excess rent payment, neither party was awarded costs. In a new dispute between the parties, the municipal undertaking claimed that the costs in the preceding case be included in the rent. The Supreme Court's majority of three justices concluded that the costs claim and the rent claim were not so closely related that they constituted the same legal controversy. The claim for costs in the first case covered through the rent was thus not finally decided. The issue Court unanimously ruled that the municipal undertaking could not claim the costs from the first case covered through the rent. The Court referred to the parties' agreement that the municipal undertaking was to have all costs of the construction and operation of the building covered, and held that the municipality could not circumvent the court's cost ruling by demanding the costs covered through the rent. That would require the entry into of a separate agreement explicitly regulating this. Judgment was given in favour of the industrial company as far as the appeal had been referred. Partial dissent 3-2.
The Supreme Court HR-2018-2190-A (case no. 18-104537SIV-HRET), civil case, appeal against judgment
16 November 2018
Criminal law. Negligent vehicular homicide. The principle of due care.
A conclusive minority of the court of appeal had acquitted a driver of violation of section 281 of the Penal Code 2005 and section 31 subsection 1, cf. sections 3 and 4 of the Road Traffic Act. Driving his car, the defendant had crossed the oncoming lane to turn left at a crossroads, and collided with a cyclist who came downhill in the opposite direction. The Supreme Court emphasised the defendant's duty to yield to the right. Thus, there was an increased application of the principle of due care. The collision could not be explained by incorrect caution or momentary distraction. Nor was there reason to emphasise the conduct of the aggrieved party, which was neither extraordinary nor unlawful. The minority of the court of appeal had then applied the principle of due care in section 281 of the Penal Code incorrectly. The court of appeal's judgment and main hearing were repealed.
The Supreme Court HR-2018-2189-A (case no. 18-100728STR-HRET), criminal case, appeal against judgment
16 November 2018
Civil proceedings. Patent law. Territorial jurisdiction.
An action with a claim for transfer of patents and patent applications was brought before Oslo District Court. The Supreme Court concluded that the jurisdiction provision in section 63 subsection 1 (1) of the Patent Act only applies to actions concerning the right to the invention before the patent is granted, while the corresponding provision on transfer of patents in section 63 subsection 1 (4) applies to patents that have been granted. The Court emphasised the structure and wording of the Act. The rule in section 63 subsection 1 (4) is also limited to the cases where the Patent Office has granted the patent to someone who had no right to the invention. The reference to sections 52 and 53 is a real demarcation. Section 63 (4) was thus not applicable to the case, where a substantive basis for the claim was asserted. Oslo District Court thus lacked territorial jurisdiction. The Supreme Court concluded, like the lower instances, that the case had to be transferred to the courts of the defendant, see section 4-7 of the Dispute Act.
Supreme Court HR-2018-2191-A (case no. 18-064988SIV-HRET), civil case, appeal against order
8 November 2018
Immigration law. Revocation of residence permit. The right to respect for private and family life
The immigration authorities had revoked the temporary residence permit for a single Afghan woman and her daughter, see section 37 subsection 1 (e) of the Immigration Act, after the woman's husband had come to Norway. The Supreme Court found that the revocation had sufficient legal basis in the Immigration Act, despite the weaknesses of the administrative decision. The woman and her daughter had also not obtained such protection of private and family life so as to invoke Article 102 of the Constitution or Article 8 of the European Convention on Human Rights. It was concluded that a temporary residence permit under section 60 of the Immigration Act did not generally provide grounds for establishing a private life protected under these provisions.
Supreme Court HR-2018-2133-A (case no. 2017/2179), civil case, appeal against judgment
30 October 2018
Criminal law. Sentence. Sexual activity with children under the age of 16. Young perpetrator. Damages for non-economic loss.
A person convicted of violations of section 302 of the Penal Code 2005, who was 20 years old at the time of the offences, had at the age of 15 been convicted of two incidents of intercourse with children under the age of 14, see section 195 subsection 2 second penal option of the Penal Code 1902. The Supreme Court found that Article 40 (2) of the Convention for the Convention on the Rights of the Child, read in conjunction with General Comment no. 10 of the Committee on the Rights of the Child, did not prevent production of evidence of convictions for acts that the defendant had committed as a minor, see section 301 subsection 2 of the Criminal Procedure Act. Such acts could also be aggravating circumstances, see section 77 (k) of the Criminal Procedure Act. The penalty was set at 120 days of imprisonment, after a reduction had been made for his confession, see section 78 (f) of the Criminal Procedure Act, as well as a short reduction due to delay on the part of the prosecution authority. No damages were awarded for non-economic loss under section 3-5, cf. 3-3, of the Compensatory Damages Act as there was proximity in age and development, no adverse effects had been reported, the parties were in a relationship and the acts were voluntary.
Supreme Court HR-2018-2096-A (case no. 18-106598STR-HRET), criminal case, appeal against judgment
30 October 2018
Tort law. Patient compensation. Mental injury. Foreseeability.
A 15-year-old boy had died while in hospital due to health care failure. The Supreme Court found that the boy's mother, who had found him dead, was entitled to compensation from the state under section 2 subsection 1 (a) of the Patient Injury Act for the mental injury she had suffered. The parties agreed that there existed a basis for liability under the Patient Injury Act and a causal relationship between the health care failure and the mother's mental injury, and the Supreme Court also found that the injury was not so unforeseeable and remote as to exclude liability. The discussion was based on the so-called shock injury judgments – Rt-1960-357, Rt-1966-163 and Rt-1985-1011 – and the Court held that the legal status expressed in these judgments could be justified to some extent. The Court also referred to recent years’ trends related to the same type of injury and to the current starting point that mental injury is equal to physical injury under tort law. Also, the case law referred to is not entirely compatible with the basic vulnerability principle in tort law. For more than 40 years, tort law experts have questioned the Supreme Court's practice in the so-called shock injury cases. The district court's judgment, imposing liability on the state represented by the Patient Injury Compensation Board, was upheld.
Supreme Court HR-2018-2080-A (case no. 18-052824SIV-HRET), civil case, appeal against judgment.
19 October 2018
Criminal law. Local application of the Penal Code. Abuse in close relationships partially committed in a foreign country.
An indictment under section 291 subsection 1 of the Penal Code 1902 and section 282 of the Penal Code 2005 concerned abuse that had started in Norway in 2009, continued during a stay in Nigeria during the period 2012-2014 and resumed in Norway from 2014. The acts were not punishable in Nigeria. The Supreme Court found, like the court of appeal, that Norwegian criminal law was applicable to the acts committed in Nigeria, and that the collective offence in its entirety was to be considered committed in Norway, see section 4 of the Penal Code. The dual criminality requirement in section 5 subsection 1 of the Penal Code 2005 was not applicable. The offence had already been placed under Norwegian penal jurisdiction, and no weighty considerations indicated that the same should not apply to subsequent acts that were part of the same offence, although they had been committed during a temporary stay in Nigeria. The case differed from HR-2017-2429-A, where the criminal act had started in the foreign country in question. The court of appeal had set a penalty at one year and three months of imprisonment. The appeal against the court of appeal's application of the law was dismissed.
Supreme Court HR-2018-2043-A (case no. 18-100677STR-HRET), criminal case, appeal against judgment
19 October 2018
Criminal law. Local application of the Penal Code. Abuse in close relationships started in a foreign country.
A defendant had been convicted by the court of appeal of violation of section 291 of the Penal Code 1902. The abuse had started in England, where the defendant and the aggrieved party then lived, and had continued in Norway. The acts committed in England were, at the time, not punishable in Norway unless they were also punishable in England, see HR-2017-2429-A. The court of appeal had not considered this issue. The court of appeal grounds were thus based on incorrect application of the law. The court of appeal's judgment and main hearing were set aside. The case differed from HR-2018-2043-A, where the offence had started in Norway before it continued in a foreign country.
Supreme Court HR-2018-2044-A (case no. 18-102426STR-HRET), criminal case, appeal against judgment
17 October 2018
Criminal law. Criminal procedure. Sentencing. Drugs. «Apparent disproportion».
The penalty for violation of section 232 subsection 1, cf. section 231 subsection 1 of the Penal Code was stipulated to three years and three months of imprisonment in a case where the district court and the court of appeal had stipulated a penalty of three years and six months of imprisonment. The convicted person had stored approximately 600 grams of heroin and a smaller amount of other substances. A deduction was made from the penalty for lengthy proceedings and for his confession and cooperation with the police, see section 78 (f) of the Penal Code. Before the indictment, there had been a period of inactivity of almost 18 months. The court of appeal had stated that the district court's deduction of six months for this inactivity "might be somewhat low", but did not alter the deduction or the total sentence, see section 344 of the Criminal Procedure Act. The Supreme Court held that the court of appeal should have considered the size of the deduction because of the inactivity. It was also pointed out that according to recent case law, the court of appeal is to stipulate a correct sentence after having heard the appeal, even if it only entails a minor adjustment to the sentence of the lower court.
Supreme Court HR-2018-1987-A (case no. 18-130989STR-HRET), criminal case, appeal against judgment.
16 October 2018
Company law. Wind-up. Shareholders' liability. Liquidation shares.
A company being wound up had, after the expiry of the deadline for reporting claims under section 16-4 of the Companies Act, made two distributions to the shareholders. One was referred to as dividends and the other as distributable equity. A creditor that had not received settlement brought an action against the shareholders in accordance with section 16-12 of the Companies Act. The Supreme Court found that section 16-9 of the Companies Act should be interpreted to mean that all distributions to shareholders after the expiry of the six-week deadline, including those referred to as dividends, are exhaustively regulated by this provision. All such distributions are thus comprised by the shareholders' strict liability under section 16-12 subsection 1. The liability rule in section 3-7 of the Companies Act is thus limited to distributions of dividends under section 8-1 made before the expiry of the six-week deadline.
Supreme Court HR-2018-1983-A (case no. 2017/1868), civil case, appeal against judgment.
11 October 2018
Employment law. Termination of RGP agreement. Right of reservation.
A physician was dismissed from her job as a regular general practitioner (RGP) in a municipality because she, for reasons of conscience, refused to insert IUDs. The Supreme Court found that a binding oral agreement had been entered into between the doctor and the municipality under which her right of reservation for reasons of conscience had been recognised. The state of the law with regard to RGPs' right of reservation was unclear when the agreement was entered into, so the oral agreement was not contrary to applicable law at the time of employment. Since the physician was dismissed for breaching her duties under the RGP agreement, the grounds were unreasonable, and the termination was declared unlawful. The Supreme Court also commented on the application of Article 9 of the European Convention on Human Rights to situations where a RGP, for reasons of conscience, refuses to insert IUDs. The municipality was held strictly liable. The Supreme Court pointed out that the dismissal took place in a contractual relationship where the individual party carries the risk of any mistake of law, the physician had lost her job as a RGP, and the notice of termination was worded in a sanction-like manner.
Supreme Court HR-2018-1958-A (case no. 2018/199), civil case, appeal against judgment.
11 October 2018
Employment law. Transfer of undertaking. Right of choice. Early retirement.
An employee aged 60 was transferred to a new employer following a sale of the part of the undertaking she worked in. Because of the transfer, she lost the opportunity to take out an annual early retirement pension (AFP) at the age of 62. The Supreme Court found that she was entitled to continue her employment with the previous employer. The central condition for such a right of choice – that the transfer of undertaking entailed "material negative changes" to the employment – was considered met, as she had substantiated that she, because of the transfer, missed early retirement payments in an aggregate amount of NOK 1.3 million.
Supreme Court HR-2018-1944-A (case no. 2018/177), civil case, appeal against judgment.
10 October 2018
Criminal law. Sentencing. Drugs. Community sentence.
The penalty for violation of section 231 subsection 1 of the Penal Code was 204 hours of community work, alternatively seven months of imprisonment. The defendant had had dealings with 62 grams of cocaine. Considerations of general deterrence were prominent in the case. However, decisive emphasis was placed on changes to the defendant's circumstances of life. After having committed the offences, he had found work and received only praise from his employer. He had also changed his personal situation. The Court also referred to the confession and the fact that the offences had been committed nearly two and half years ago.
Supreme Court HR-2018-1942-A (case no. 18-103952STR-HRET), criminal case, appeal against judgment
8 October 2014
Public administration law. Military no-go zone. Fish farming.
A fish farming facility located within a military no-go zone, which had been established in accordance with section 18a of the Security Act, could not be changed or expanded due to the interests of the Armed Forces. An application for having the facility moved to a place outside of the no-go zone required a dispensation from the area allocated in the municipal plan, which was also denied. In a subsequent case against the state represented by the Ministry of Defence, the Supreme Court found that the fish farmer had a legal interest in a declaratory judgment stating that the Armed Forces had no authority to refuse an expansion or to deny employees access to the place. With a majority of four justices, the Supreme Court found that denying people access to the fish farming facility was in accordance with section 18a, with the consequence that a judgment in the state's favour had to imply that the business had to close or move. The Court referred to the general wording of the provision, and that a narrow interpretation would give results that are incompatible with the legislative intent of the authority provision in section 18a. Dissenting opinions 4-1.
Supreme Court HR-2018-1907-A (case no. 18-048256SIV-HRET), civil case, appeal against judgment.
8 October 2018
Criminal procedure. Criminal law. Access to evidence. Presumption of innocence. Damages for non-economic loss.
A defendant in a rape case had given two police statements during the investigation. The first statement could not be used during the court proceedings due to the absence of the defence lawyer, while the court of appeal accepted that the defendant had been confronted with the second statement. A submission that the police had committed a procedural error by giving a summary of the first interview as an introduction the second did not succeed. The Supreme Court held that there was no operative linkage between the basis for the court of appeal's determination of guilt and the statement given by the defendant in the first interview. The defendant had been convicted in the court of appeal of serious unintentional rape, see section 291, cf. sections 294 and 302, of the Penal Code, while the indictment concerned intentional rape. Two statements in the court of appeal's grounds of judgment violated the presumption of innocence principle in Article 96 (2) of the Constitution, as they were worded in a manner that, in isolation, created doubt as to whether the acquittal for intentional rape was correct. The Supreme Court thus gave a declaratory judgment for violation of Article 96 (2) of the Constitution. The defendant was a minor when the act was committed. The Supreme Court measured the damages for non-economic loss to the aggrieved party based on standardised damages for non-economic loss, also taking into account the aspects set out in section 1-1 of the Compensatory Damages Act. The damages were fixed at NOK 200,000.
Supreme Court HR-2018-1909-A (case no. 18-060130STR-HRET), criminal case, appeal against judgment
8 October 2018
Property law. Redemption of property.
A property owner wrote in his will of 1940 that a legacy was to be established to offer his property in Stavanger as a residence for the bishop of Stavanger. In 1966, the property was transferred to the Norwegian Church Endowment. The deed stated that the property could not be used for other purposes than bishop residence without the legacy's consent. It also stated that the legacy could reclaim the property if it could not be used for that purpose. The bishop vacated the residence in 2015. The legacy then reclaimed the property, but with no success. The Supreme Court held that the provision on reclaim was a right to redemption under the Redemption of Property Act (løysingslova); hence annulled as of 1 July 2015, see section 23 subsection 3 of the same Act. The annulment of the right to redeem property was not in conflict with Article 97 of the Constitution or with Protocol 1 Article 1 of the ECHR. However, the annulment did not entail an annulment of the clause stating that changes in use require the legacy's consent; hence, that clause was still applicable.
Supreme Court HR-2018-1906-A (case no. 2017/2127), civil case, appeal against judgment.
27 September 2018
Courts of Justice Act. Legal competence. Supreme Court justice.
One of the justices in a case before the Supreme Court was previously partner of a large law firm where one of the advocates had been employed. The Supreme Court considered it clear that the justice was competent under section 108 of the Courts of Justice Act. The advocate had not brought the case with him from the firm where they both had worked. There was no close friendship between the two, and the former working relationship did not give any reason to establish incompetence.
Supreme Court HR-2018-1936-A (case no. 2017/1867), civil case, appeal against judgment
21 September 2018
Criminal law. Obstruction of justice. Professional misconduct. Application of a new provision to the matter.
A police chief inspector, who was involved in the investigation of unlawful wolf shooting, had sent text messages to the accused instructing him on what to say in police interviews to have the case dismissed. The chief inspector was first indicted for violation of section 157 of the Penal Code. The Supreme Court held that a natural interpretation of the wording in section 157 would be that an accused who has given or is considering giving a statement to the police, is to be regarded as a participant in the justice system, if the conditions in the provisions subsection 2 (b) or (e) has been met. The accused's talk with the police during the inspection of the scene met the criteria for a statement. It also had to be assumed that he was planning to make a statement in the interview to which he had been summoned, so (e) was also applicable. However, section 157 does not cover illegal conduct in general. To be illegal, the conduct must be likely to influence the participant in the justice system. This condition had not been met. Hence, there were no grounds for conviction under section 157 of the Penal Code. The offence was instead covered by section 171 of the Penal Code on professional misconduct, which was not contrary to section 38 of the Criminal Procedure Act. It was held that the interests the two penal provisions were meant to protect are not essentially different. The penalty was stipulated to a fine of NOK 15,000, alternatively 15 days of imprisonment.
HR-2018-1784-A (case no. 18-095375STR-HRET), criminal case, appeal against judgment
20 September 2018
Criminal law. Employment law. Fatal diving accident. Hunting and fishing. Application of the law.
A diver died while searching for scallops. The company he worked for was charged with a number of violations of section 19-1 of the Working Environment Act. The Supreme Court found, unlike the court of appeal, that scallop diving was comprised by the exemption for "shipping, hunting and fishing" in section 1-2 subsection 2 (a) of the same Act; hence, the provisions were not applicable to the matter. It was pointed out that a general interpretation of "hunting and fishing" is that it covers scallop diving. Scallop diving is also regarded as catching and fishing under the Participation Act, which implies that the same must apply under the Working Environment Act.
HR-2018-1781-A (case no. 18-072139STR-HRET), criminal case, appeal against judgment
20 September 2018
Property law. Hunting privileges.
After a sale of a farm in 1963, the previous owner kept the home fields, which were divided off and given a new property unit number. At the same time, it was agreed that the hunting privileges would not follow the sale. The Supreme Court held, unlike the court of appeal, that the agreement on the hunting privileges was contrary to the prohibition against separating the hunting privileges from a property for longer than 10 years in section 13 subsection 2 first sentence of the Hunting Act 14 December 1951 No. 7. The prohibition has now been continued in section 28 subsection 2 of the Game Act 29 May 1981 No. 38. It was pointed out that the wording of the provision is clear, and that there were no circumstances that could justify departing from it. The provision must also be interpreted to mean that the prohibition renders the agreement between the parties invalid. The judgment of the court appeal was set aside.
HR-2018-1782-A (case no. 18-071951SIV-HRET), civil case, appeal against judgment
20 September 2018
Damages for non-economic loss after acquittal in criminal case. Presumption of innocence.
A defendant who had been convicted in the district court of sexual abuse was acquitted in the court of appeal, but at the same time ordered to pay damages for non-economic loss to the aggrieved party. After an examination of relevant ECtHR case law, the Supreme Court found that the court of appeal's grounds constituted a violation of the presumption of innocence principle in Article 6 (2) of the ECHR and Article 96 second paragraph of the Constitution. In its arguments for liability for damages, the court of appeal had quoted parts of the district court's conviction judgment. It was unclear what the court of appeal had meant by a statement regarding the significance of these quotes, and expressions were used that strengthened the connection to the criminal case. Although the court of appeal had specified that the ruling did not affect the correctness of the acquittal in the criminal case, it was still a violation. As the violation could not be remedied merely by being established by the Supreme Court, the court of appeal's ruling in the civil case was set aside.
Supreme Court HR-2018-1783-A (case no. 18-049784SIV-HRET), civil case, appeal against judgment.
18 September 2018
Criminal law. Employment law. Responsibility for Health Environment and Safety (HES). Main undertaking. Corporate penalty.
The corporate penalty for violation of section 19-1 first to third sentence, cf. section 2-2 subsections 2 and 3 of the Working Environment Act, cf. sections 32-1 and 27-1 of Regulations on Performance of Work, cf. section 48 (a) of the Penal Code 1902, was a fine of NOK 600,000. Company A, the defendant in the case, had been engaged to level and remove rock waste from an area, and had engaged company B to transport the waste from the site to a dumping place. The two companies had not coordinated their HES routines, nor had they developed their own HES routines for the work they were to perform jointly. An employee in B drove a truck over the edge of the dumping place and died. The Supreme Court found that company A had to be regarded as the main undertaking with responsibility for coordinating the HES routines. The Court held that there could only be only one main undertaking in each workplace, and that the expression refers to a specific overall assessment of both formal and factual circumstances. The assessment also had to consider the workplace as a whole and over time. In the individual assessment, it was held that the dominating activities in the workplace were the crushing activities of company A, which had engaged company B and was the only employer both before and after company B's work.
Supreme Court HR-2018-1769-A (case no. 18-082380STR-HRET), criminal case, appeal against judgment.
12 September 2018
Tort law. Motor vehicle liability. Damages for non-economic loss to the bereaved. Fatal accident. Psychotic driver.
A psychotic driver had caused a fatal traffic accident. The family of the deceased filed a claim for damages for non-economic loss against the motor insurance bureau of the injuring car. The Supreme Court found like the lower instances that the insurer's liability under section 4 second sentence of the Motor Vehicle Insurance Act was limited to damages for non-economic loss for which the personal injuring party could have been held liable under sections 1-3 and 1-5 of the Compensatory Damages Act, and which the district court and the court of appeal had set to NOK 75,000. Decisive emphasis was placed on statements in the preparatory works. System and consequence considerations could not have given any other result.
Supreme Court HR-2018-1729-A (case no. 18- 34154SIV-HRET)
11 September 2018
Contract law. Interpretation. Ownership of by-product from lime recovery.
Under an agreement of 1906, an undertaking consisting landowners [sameie] transferred "all Lime or Marble Rock existing on our joint Land" to a buyer. The lime and marble deposits on the land also contains eclogite, which must be extracted in connection with the recovery of lime and marble. The current licensee has exploited the eclogite commercially. The Supreme Court found that the dispute between the landowner and the licensee on the right to the eclogite had to be resolved based on the agreement from 1906, and that the circumstances of the agreement implied that the parties had meant that the transfer included the rock mass, which in any case had to be taken out to reach the lime and the marble. The agreement said nothing about which of the parties was to handle the by-production that could not take place at the plant. Hence, it was likely that they had assumed that the licensee was to be responsible and carry the risk for the handling of the by-production. Any commercial exploitation of the by-product on the licensee's part was thus not the landowner's concern.
Supreme Court HR-2018-1721-A (case no. 2018/18), civil case, appeal against judgment.
11 September 2018
Child welfare. Family law. Adoption. Parental responsibility.
The County Social Welfare Board had ordered deprivation of parental responsibility and consented to forced adoption under the Child Welfare Act section 4-20 of a, now, five-year-old boy. He had been taken from his parents immediately after his birth and been living with his foster parents for almost four years. He was also very vulnerable and in need of special care. Following an overall assessment, the Supreme Court found that it would be in the child's best interests if the foster parents adopted him, arguing that no established social ties between the boy and his biological parents would be severed, as he had never had any form of access to them. The Court also doubted whether he would ever understand the meaning of "biological parents". Appropriate contact between the boy and his biological parents would in any case depend on the foster parents. It was concluded that such "exceptional circumstances" were present that justified forced adoption in accordance with case law of the Supreme Court and ECtHR. The appeal against the court of appeal's judgment allowing deprivation of parental responsibility and forced adoption was dismissed.
Supreme Court HR-2018-1720-A (case no. 2018/77), civil case, appeal against judgment
11 September 2018
Expropriation law. Utility value. Capitalisation interest. Commercial real estate.
In connection with an expropriation appraisement concerning surrender of commercial real estate that was to be compensated according to its utility value under the Expropriation Compensation Act section 6, the court of appeal had used the standard capitalisation interest of four percent. The Supreme Court's majority of four justices held that the expropriated person's duty to adjust implied that it had a duty to reinvest the compensation amount in objects with the same level of return as the surrendered property. The compensation should thus have been fixed based on reinvestment in the type of business in which the expropriated person engaged, but not lower than the standard interest rate. The majority did not find that there was a general rule stating that the capitalisation interest could not be higher than the standard rate. As for losses in a period of disruption, the Supreme Court found unanimously that there was no basis for applying the standard interest rate. For such items, a possible capitalization interest would have had to be connected to an individual assessment of the expropriated person's prospects of return in the same period. The court of appeal's review was set aside to the extent it was appealed. Dissenting votes 4-1.
Supreme Court HR-2018-1715-A (case no. 2018/8), civil case, appeal against judgment.
4 September 2018
Criminal law. Dealings with explosives with the aim of committing a crime.
The punishment for violation of the Penal Code section 191a was 10 months of imprisonment. The convicted person, who was 17 years old, had made an explosive and brought it to Grønland in Oslo with the aim of detonating it there. He was arrested before the explosive was detonated. The Supreme Court stated that the offence was covered by section 191a, as completion of the act he was planning to commit was punishable under section 188. With some doubt, the offence was not considered covered by section 191b. The explosive had limited damage potential and the planned act could thus not be regarded as particularly harmful to society. The punishment was suspended due to the age of the convicted person, see the Penal Code section 33.
Supreme Court HR-2018-1659-A (case no. 18-076552STR-HRET), criminal case, appeal against judgment
4 September 2018
Criminal law. Neglient vehicular homicide. Threshold for negligence. Damages for non-economic loss.
The punishment for violation of Penal Code 2005 section 281 and the Road Traffic Act section 31 subsection 1, cf. sections 3 and 6, was 120 days of imprisonment of which 90 days were suspended. The defendant, who had kept a speed of 80-85 km/h on a road with a 60 km/h speed limit, had moved towards the left to start the overtaking of a moped. The moped, however, also turned left to exit the road and was hit by the defendant. The moped rider was killed in the collision. The Supreme Court's majority of four justices found, like the court of appeal, that the threshold for establishing negligence had been exceeded. It was held that the defendant, despite the speed, had time to reconsider the overtaking when the moped moved towards the middle of the road, and that the likelihood that he would continue crossing was so strong that an alert car driver would perceive it and disrupt the attempt to pass. Each of the surviving relatives was awarded NOK 125,000 in damages for non-economic loss. The convicted person's appeal against the court of appeal's application of the law was dismissed. Dissenting votes 4-1.
Supreme Court HR-2018-1658-A (case no. 18-057356STR-HRET)
4 September 2018
Criminal law. Application of the law. Sentencing. Violence. Theft. Multiple offences.
The punishment for two violations of the Penal Code section 286, three violations of section 271 and 18 violations of section 321 was six months of imprisonment. The convicted person had on two occasions attacked a bus driver who had asked him to leave the bus, and on three other occasions hit or kicked another person. Some of the violations of section 321 concerned minor theft, but the Supreme Court found nevertheless that the offences were to be punished under section 321 and not section 323. The convicted person was a previous convict and he had been fined several times. In the sentencing, some weight was placed on his confession.
The Supreme Court HR-2018-1660-A (case no. 18-073766STR-HRET)
4 September 2018
Criminal law. Participation in terrorist organisation.
The sentence for violation of section 147 (d) of the Penal Code 1902 and section 136 (a) of the Penal Code 2005 was nine years of imprisonment. The convicted person had participated in the terrorist organisation ISIL from the turn of the year 2013/2014 until December 2015. The participation consisted of actively helping Norwegian foreign fighters – economically and otherwise - in connection with their travels to Syria to join ISIL and while they were fighting for the organisation there. He was also convicted under section 147 (d) of the Penal Code 1902 of having recruited two members to ISIL, and of having given economic and material support to two other members. The participation, the recruiting and the economic and material support were regarded as separete punishable acts. The grounds of the court of appeal were adequate leaving no doubt that the court had based its judgment on the correct standard of proof or as to why the defendant was convicted. In its sentencing, the Supreme Court took into account the description of ISIL as the one of the worst terrorist organisations of our time. Such organisations represent a large threat to the safety of the public and to our democratic values, and for general deterrence reasons it must be reacted strongly to these types of crimes. The convicted person's appeal against the court of appeal's application of the law, procedure and sentence was dismissed.
The Supreme Court HR-2018-1650 (case no. 18-044407HRETSTR), criminal case, appeal against judgment
28 August 2018
Insurance law. Limitation period.
A policyholder had brought the insurance company's settlement refusal in a personal injury action before the Norwegian Financial Services Complaints Board. The company had invoked the rule on a six months' limitation period in the Insurance Contracts Act section 18-5 subsection 2 in a separate notification pursuant to section 18-6 subsection 3. A writ was issued against the company 10 months after the case had been completed by the Complaints Board without a decision on the merits. The company, that had sent a new notification pursuant to section 18-6 subsection 3, contended that the claim was then time-barred. The Supreme Court found that the completion by the Complaints Board entailed that the one-year time limit in the Limitations Act section 22 no. 1 was applicable, and that the company could not once more invoke the limitation period rule in the Insurance Agreements Act section 18-5 subsection 1 when the limitation period had first been interrupted by the original complaint. The claim for compensation was thus not time-barred when the writ was received by the court.
The Supreme Court HR-2018-1612-A (case no. 2017/2212), civil case, appeal against judgment.
29 June 2018
Criminal law. Insurance fraud. Sentencing.
The punishment for violation of the Penal Code section 375 subsection 2 and section 361 subsection 1 a letter a was 21 days of imprisonment. The convicted person had edited old service reports and receipts that he had found in the database of his former employer, so that they looked like proof of damage to personal property. Presenting this as documentation, he had submitted a claim of approx. NOK 58 000. The Supreme Court found that there was no basis for a community sentence. There was no basis for increasing the limit for unconditional imprisonment so that it becomes identical to the limit for social security fraud. Even though the amount alone did not prevent the use of community sentence, the document fraud conviction was an aggravating circumstance. It was also held that the fraud had been committed during the probation period following a previous suspended sentence, and that the convicted person was not undergoing any form of rehabilitation that according to case law might provide grounds for a community sentence.
The Supreme Court HR-2018-1281-A (case no. 18-051721STR-HRET), criminal case, appeal against judgment
28 June 2018
Enforcement. Execution lien. Pro forma.
Through an enforceable judgment, a company registered in the Turks and Caicos Islands was ordered to pay a significant amount to a German bank. After the bank had submitted a claim against the company, the latter's shares in a Norwegian IT company had been transferred to its Norwegian sole shareholder, and then on to the sole shareholder's father. The main issue of the case was whether the shares in the IT company should be considered to belong to the debtor, cf. section 7-1 of the Enforcement Act, so that the bank could levy execution on them. The Supreme Court found, contrary to the court of appeal, that the question whether a single creditor could levy execution on an item or right transferred from the debtor to a third party by an invalid transaction should be settled under Norwegian law and that a single creditor may levy execution on assets unlawfully distributed from a limited liability company. The question whether the transfer to the father was a pro forma transaction had to be assessed objectively. Taking this into account, the court of appeal's ruling was based on a too narrow assessment. The court of appeal's ruling was set aside due to error in law.
The Supreme Court HR-2018-1265-A (case no. 2017/1886), civil case, appeal against order
28 June 2018
Criminal law. Serious bodily harm followed by death. Serious assault. Sentencing.
The punishment for violation of the Penal Code section 274 cf. section 273 cf. section 15 and section 272 cf. section 271 cf. section 15 was five years and two years of imprisonment respectively. The two convicted persons had participated in different ways in violence and maltreatment of a person who died. They were acquitted of the murder charges. A third person was convicted of the murder. It is emphasised in the judgment that if the offence of which the defendant is acquitted counts as an aggravating circumstance in the sentencing, it entails a violation of the presumption of innocence principle in the Constitution article 96 and the ECHR article 6. However, the court of appeal's judgment had to be construed to mean that there no such violation had taken place. The appeal against the court of appeal's sentence was dismissed.
The Supreme Court HR-2018-1271-A (case no. 2018/384), criminal case, appeal against judgment
28 June 2018
Public administrative law. Petroleum law. Validity of Tariff Regulation.
On 26 June 2013, the Ministry of Petroleum and Energy decided to amend Regulations of 20 December 2002 no. 1724 on tariffs etc. for certain facilities (the "Tariff Regulations"). The amendment entailed a reduction of the price of gas transport through the gas pipe system owned by the joint venture Gassled. In the question whether the amendment had legal basis, the Supreme Court held that the Tariff Regulations originally had legal basis in section 10-18 subsection 1 and section 4-8 subsection 1 third sentence of the Petroleum Act and in section 70 of the Petroleum Regulations. The capital element in the tariff had been established in accordance with section 63 subsection 4 of the Petroleum Regulations with the purpose of continuing the established goal to obtain a real return on the invested capital of around seven percent. The Supreme Court found that the Ministry could amend the Tariff Regulations within the scope of their original legal basis, and that section 4-8 did not entail independent limitations of significance in the Ministry's right to make the relevant adjustments. The amendment of the Regulations was within the legal basis provided in the Petroleum Act and in the Petroleum Regulations. The Supreme Court did not consider whether the amendment was an interference with the right to protection of property in ECHR P1-1, as it was not under any circumstances a disproportionate measure. Hence, there was no basis for declaring the amendment invalid. The Supreme Court HR-2018-1258-A (case no. 2017/1891), civil case, appeal against judgment
28 June 2018
Criminal procedure. Remand in custody. Credit for time in custody. Isolation.
A person remanded in custody had been excluded from the company of other inmates four times. The Supreme Court found that extra credit for time in custody pursuant to the Penal Code section 83 subsection 2 second sentence is not to be granted when the isolation measure is decided by prison authorities pursuant to the Execution of Sentences Act sections 37 – 40, unless the inmate himself is not to blame for the measure. This had the result that the person remanded in custody was entitled to extra credit for one of the isolation incidents which he himself had not caused, see the Execution of Sentences Act section 37 subsection 9, but not for the three incidents that were the result of his own conduct.
The Supreme Court HR-2018-1261-A (case no. 18-49643STR-HRET), criminal case appeal against judgment
28 June 2018
Maritime law. Shipwreck. Limitation fund. Distribution base.
After an oil spill accident outside of the Norwegian coast, a limitation fund was constituted pursuant to the Maritime Code section 177, cf. section 231 et seq. The fund consisted of a liability part pursuant to section 232 subsection 1 a, and an interest component pursuant to section 232 subsection 1 b. The total claim against the fund, of which the state's claim in connection with the cleanup operation constituted the main part, exceeded the total amount of the fund. The Supreme Court found that only the liability amount pursuant to section 232 subsection 1 a – and not the interest component pursuant to section 232 subsection 1 b – was to be part of the creditors' distribution base. The Court held that the rules on limitation of liability are clear and incompatible with the idea of including the interest component in the distribution base. Other sources of law were partially unclear and suggested no other solution.
The Supreme Court HR-2018-1260-A (case no. 2017/2118), civil case, appeal against judgment
26 June 2018
Law of torts. Estate agent's liability.
After an estate agent's advertising and presentation of an apartment building, the sellers accepted a bid of NOK 20 million. A potential buyer with whom the agent had been in contact, but who had not submitted a bid, later wanted to buy the property for a higher price. The estate agent had not informed the sellers about this potential buyer before the sales contract was signed. The Supreme Court held that the agent should have informed the sellers pursuant to the Estate Agents Regulation section 6-3, but concluded nevertheless that the omission was not negligence giving rise to liability. The Court placed decisive emphasis on the uncertainty whether there had been a genuine possibility of obtaining a higher bid, stating that it was understandable that the estate agent chose to concentrate on the existing bid. The Regulation's section 6-3 subsection 3 was not applicable, as no advertised presentation had been arranged. The claim for a reduction of the estate agent's fee was also dismissed.
The Supreme Court HR-2018-1234-A (case no. 2017/1695), civil case, appeal against judgment
19 June 2018
Employment law. Pregnancy.
A pregnant employee was dismissed allegedly due to the undertaking's need to reduce the workforce. Pursuant to the Working Environment Act section 15-9, pregnancy shall be deemed to be reason for dismissal unless other grounds are "highly probable". With reference to unambiguous statements in preparatory works, the Supreme Court held that "highly probable" in this regard must mean that clear preponderance of the evidence is required to establish that the dismissal was due to something other than the pregnancy. Based on evidence close in time and lack of discussions pursuant to section 15-1, the undertaking did not meet the standard of proof. Decisive emphasis was placed on the fact that the undertaking prior to the dismissal had made various arrangements indicating that the employee's function would be continued. The judgment by the court of appeal, in favour of the employee, was set aside.
The Supreme Court HR-2018-1189-A (case no. 2017/1998), civil case, appeal against judgment.
19 June 2018
Criminal law. Serious drug offence. Sentence. Aggregate sentence.
A person who had been sentenced in the district court to seven years and six months of imprisonment for serious drug offences, acquired 990 grams of amphetamine after his appeal against the district court's judgment had been admitted to hearing in the court of appeal. The court of appeal later reduced the sentence in the first case to seven years of imprisonment. The Supreme Court found that the punishment for the acquisition of 990 grams of amphetamine, see the Penal Code 2005 section 232 subsection 1, cf. section 231 subsection 1, should be two years and nine months of imprisonment. Neither the convicted person's earlier sentences nor the district court's judgment in the first case justified application of the Penal Code 2005 section 77 k or section 79 b. Nor was there a basis for applying section 82, as any use beyond the area of application stated therein is highly restricted. The Supreme Court then stipulated an aggregate sentence in the two cases of nine years and nine months of imprisonment pursuant to the Penal Code 2005 section 82 subsection 4.
The Supreme Court HR-2018-1188-A (case no. 2018/312), criminal case, appeal against judgment.
13 June 2018
Civil proceedings. Final force.
A buyer of plumbing services had been ordered, by a legally binding judgment in default, to pay two unpaid invoices from the plumber. The buyer then brought an action against the plumber claiming damages and repayment for alleged overbilling. The district court and the court of appeal dismissed the claims as already resolved by a final and enforceable judgment pursuant to the Dispute Act section 19-15 subsection 3. The Supreme Court, that heard the appeal in chambers, held that a claim for price reduction for defective performance must be counted as an objection to the action for the price, which means that it cannot be brought as a special claim in a subsequent case, and that there is basis for considering the claim for price reduction and the claim for damages for breach of contract as the same claim. In the individual assessment, the Supreme Court held that the claim for repayment had to be counted as an objection that had been decided with final force by the judgment of the conciliation board. The appeal against the court of appeal's order was dismissed.
The Supreme Court HR-2018-1130-A (case no. 2018/138), civil case, appeal against order.
6 June 2018
Tort law. Patient injury compensation. Nerve damage.
During hip surgery, the patient inflicted a nerve damage to his legs, caused by pressure against both thigh nerves. The Supreme Court held that the conditions for compensation pursuant to the Patient Injury Act section 3 that the injury must be caused by an exterior factor and that the cause of the injury must be unclear had been met. The provision is however an evidence rule, and not a provision on strict liability. It does not permit exemptions from the basic condition in section 2 subsection 1 a that error must be established in the provision of health care. Standard procedure had been followed, and it was assumed that no error had been committed. The appeal against the court of appeal's judgment in favour of the respondent was dismissed.
The Supreme Court HR-2018-1056-A (case no. 2018/219), civil case, appeal against judgment.
6 June 2018
Administrative law. Dog destruction order.
The police had ordered the destruction of a mixed-race dog that had bit a man and inflicted him with a relatively large, bleeding wound; see the Dogs Act section 18 subsection 1. After reviewing the preparatory works, the Supreme Court held that the threshold of what can be counted as such unacceptable risk that may give grounds for destruction is not very high. In the individual assessment, the Supreme Court found that there was a genuine and significant risk that the dog could attack and hurt people again. The dog also scared people in the neighbourhood. Under these circumstances, the owner's emotional attachment and her needs had to give way. Destruction was not a disproportionate measure. The appeal against the court of appeal's judgment for the respondent was dismissed.
The Supreme Court HR-2018-1057-A (case no. 2017/1678), civil case, appeal against judgment.
6 June 2018
Administrative law. Dog destruction order.
The police had ordered the destruction of a mixed-race dog that during a short lapse of time had bit a woman and injured her arm, bit a man's leg, jumped on a baby stroller, attacked two police officers and snapped at passers-by, see the Dogs Act section 18 subsection 1. The Supreme Court found it clear that the basis conditions for destruction in section 18 had been met. The attacks were frightening and some had a serious injury potential. The Supreme Court also found that there was a genuine and significant risk that the dog could attack and hurt people again. Destruction was not a disproportionate measure. The appeal against the court of appeal's judgment dismissing the appeal against the district court's judgment for the respondent, was dismissed.
The Supreme Court HR-2018-1058-A (case no. 2017/2028), civil case, appeal against judgment.
4 June 2018
Employment law. Temporary worker. Travel time allowance.
A temporary worker from Manpower AS had been hired by the Norwegian Public Roads Administration (Statens vegvesen) to work at Tønsberg traffic station. But, like the permanent employees at the traffic station, he was to work in Larvik on certain days. As opposed to the permanent employees, he did not receive travel time allowance for the days he worked in Larvik. The Supreme Court found, like the lower instances, that travel time allowance was covered by the equal treatment provision in the now repealed Civil Service Act section 3B no. 1, so that he was entitled to the same travel time allowance as the others. The Supreme Court referred to the intention expressed in the preparatory works that the equal treatment provision should have a relatively broad area of application, and held that the purpose of genuine equality would not be fulfilled if such travel time allowance was not part of it. The identical provision in the Working Environment Act section 14-12a now also applies to civil servants.
The Supreme Court HR-2018-1037-A (case no. 2017/206), civil case, appeal against judgment
4 June 2018
Employment law. Travel time. Overtime work. Collective bargaining agreement.
A policeman had performed work during three travels to and from a workplace different from his usual one and outside of normal working hours. The Supreme Court unanimously found that he had a legal interest in having established that the travel time was working hours pursuant the provisions in the Working Environment Act chapter 10, and that the disputed travel time was to be counted as working hours. A majority of four justices found that two of the travels should count as working hours pursuant to the main rule on compensation for domestic travel in the applicable collective bargaining agreement, while the third travel, which the policeman had been ordered to make when he was off duty, entitled him to overtime pay pursuant to a special provision in the collective bargaining agreement on overtime work. Dissenting votes 4-1.
The Supreme Court HR-2018-1036-A (case no. 2016/928), civil case, appeal against judgment
1 June 2018
Tort law. Damages for non-economic loss. Manslaughter. Funeral costs. Young perpetrator.
A young man convicted of two counts of voluntary manslaughter, who was 15 ½ when committing the crimes, was ordered in the district court and in the court of appeal to pay the costs of the funerals and the standard damages for non-economic loss of NOK 200 000 to each of the seven bereaved parties. The Supreme Court held that the Compensatory Damages Act section 1-1 must mean that at least minors over the age of criminal responsibility can be liable for damages for non-economic loss. The provision is also worded so as to allow the flexibility required to maintain the obligations towards children pursuant to the Constitution article 104 and the Convention on the Rights of the Child article 3. In the individual assessment, it was deemed reasonable to impose full liability on the convicted person for funeral costs and damages for non-economic loss. It was assumed that he would be able to handle the recourse claim from the Office for Criminal Injuries Compensation after having served his sentence. There was no basis for differentiating the damages for non-economic loss to the parents of one of the victims because the victim did not live with them at the time of the crime. The appeal against the judgment of the court of appeal was dismissed.
The Supreme Court HR-2018-1014-A (case no. 2017/2020), civil case, appeal against judgment.
31 May 2018
Property law. Jurisdiction of the land consolidation court. Usage. Cooperative. Snow ploughing.
In a case regarding usage pursuant to the Land Consolidation Act 1979 section 2 for the members of a road association organised as a cooperative, the consolidation court had decided that the members, for their own account, could plough the roads that the association did not plough. The association's annual meeting then decided to set aside the decision of the consolidation court, and that ploughing was to take place in accordance with previous practice, which implied, among other tings, that cross-country skiing trails were to be prepared on some of the routes. The Supreme Court concluded unanimously that the decision of the annual meeting was invalid, but on different grounds. Two justices emphasised the association's articles that did not authorise the association to prohibit snow ploughing for the sake of skiing trails. Two justices emphasised that the association was an operating business, and that its annual meeting was thus not authorised to restrict the members' right of way as done here. A fifth justice emphasised that the decision of the land consolidation court was binding for the right holders.
The Supreme Court HR-2018-1004-A (case no. 2017/2032), civil case, appeal against judgment.
9 May 2018
Criminal case. Application of law. Sentencing. Sexual activity. "Committed by two or more persons jointly".
The punishment for violation of the Penal Code 1902 section 196 subsection 1 was imprisonment of nine months. The convicted person who had had sexual intercourse with a girl aged 15 years and seven months was convicted in the court of appeal of violation of section 196 subsection 2 a, while a third person, with whom the convicted person also had had sexual intercourse, had participated during the sex with the aggrieved person. The Supreme Court found, referring to the wording of the provision, the preparatory works and case law, that section 196 subsection 2 a could not be applied to the facts, as the expression "committed by two or more persons jointly" must imply that at least two persons had to have committed sexual acts with the aggrieved person. The convicted person's confession was given weight in the sentencing. The third person, who had not appealed the district court's judgment of suspended imprisonment of five months, was instead convicted pursuant to the Penal Code 1902 section 196 subsection 1 cf. section 205, without this having any effect on the sentencing.
The Supreme Court HR-2018-884-A (case no. 2018/311), criminal case, appeal against judgment
9 May 2018
Employment law. Dismissal. Reduction of workforce. Strengthening of workforce.
An undertaking compelled to reduce the workforce at a department due to the lack of assignments had shortly before strengthened the workforce at another department. In an action brought by a dismissed supervisor regarding the validity of the dismissal, the Supreme Court held that the employer's obligation pursuant to the Working Environment Act section 15-7 subsection 2 to assess whether there is other suitable work to offer, applied to the entire undertaking, not only the department in question. The employer also had to consider whether other suitable work could be offered before deciding that dismissal was the only option. In its individual assessment, the Supreme Court found that the employer, before the dismissal, should have considered whether the position as supervisor at the department that was strengthened was "other suitable work in the undertaking". The court of appeal's judgment, concluding that the employer only needed to consider other work within the same department, was set aside.
The Supreme Court HR-2018-880-A (case no. 2017/1932), civil case, appeal against judgment.
9 May 2018
Ground lease. Adjustment of ground rent. Municipality.
A ground lessor, that was a municipality, claimed that the ground rent had to be adjusted in accordance with the land value, and that the requirement that this had to have been "unequivocally agreed", see section 15 subsection 2 of the then Ground Lease Act, was not consistent with the protection of property in Protocol 1 Article 1 of the ECHR. The Supreme Court stated that a municipality is not a legal person under the ECHR. A limitation to the municipality's right to increase the ground rent was thus not a violation of the ECHR. There was no obligation under international law indicating that the "unequivocally requirement" could be interpreted otherwise than as set out in Supreme Court case law. The municipality's submission that the legislature had chosen, on a principal basis, to equalise public and private lessors, did also not succeed. There was thus no legal basis for the municipality to increase the ground rent other than in accordance with changes in the consumer price index.
Supreme Court HR-2018-865-S (case no. 2017/1693), civil case, appeal against reappraisal.
9 May 2018
Tort law. Reindeer husbandry. Grazing damage.
Due to damage caused by winter-grazing reindeer on cultivated land, the injured parties filed a claim for damages against the relevant group of reindeer owners (siida) under section 67 of the Reindeer Husbandry Act. The Supreme Court based itself on the special consideration for protection of Sami culture when assessing whether the liability provision in section 67 entailed discrimination. This was set out in Articles 108 and 98 as well as in international conventions, in particular Articles 4, 5 and 6 of the ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries. However, the strict liability under the Reindeer Husbandry Act did not entail any unequal treatment due to animal species or trade. Nor did the provision on joint and several liability in section 67 subsection 1 first sentence entail discrimination. The Supreme Court also found that the liability provisions in the Reindeer Husbandry Act had to be supplemented by the general provisions on contributory negligence and mitigation of damages in the Compensatory Damages Act. The land appeal court and the court of appeal had however erred in their application of the provision on contributory negligence in section 5-1 of the Compensatory Damages Act, as no overall assessment had been made of all facts in the case. The grounds were also inadequate as to the mitigation issue under section 5-2 of the Compensatory Damages Act. The court of appeal's judgment and the reappraisal by the land appeal court were set aside as to the questions of contributory negligence and mitigation of damages.
Supreme Court HR-2018-872-A (case no. 2017/1668), civil case, appeal against judgment
9 May 2018
Criminal law. Misuse of public uniform. Facebook.
The punishment for violation of the Penal Code 2005 section 165 a and b was a fine of NOK 7,200, alternatively 14 days of imprisonment. The convicted person had posted an image on Facebook of himself wearing a police hat. The use was unlawful and suited to mislead the public by creating an impression that the person had police authority. The use was also suited to diminish the trust in the police. The act was also punishable under the prohibition in section 165 b against using a public weapon or brand. The act had been done in "public", see the Penal Code 2005 section 10 subsection 2, second sentence, since the image had been posted on an open profile on Facebook.
The Supreme Court HR-2018-871-A (case no. 2017/2197), criminal case, appeal against judgment.
9 May 2018
Criminal law. Sentencing. Tax law. Tax amnesty.
The punishment for serious tax evasion over a decade was three years and eight months of imprisonment. The convicted person, who was a lawyer, had requested voluntary disclosure at the local tax office (Skatt øst), but the Supreme Court's majority of three justices found, like the court of appeal, that the conditions for so-called tax amnesty in the Tax Assessment Act section 10-3 no. 2 c were not met, so that there was no basis for granting postponement of sentencing. The majority interpreted the provision to mean that voluntariness, as referred to in the first sentence, was the basic condition for amnesty, and that disclosure is not necessarily voluntary in other events than those mentioned in the second sentence. The term "caused" in the second sentence implies that disclosure is not voluntary when carried out because control measures will be initiated. In its individual assessment, the Supreme Court emphasised that it must have been clear to the convicted person, when he requested disclosure, that the tax authorities would nevertheless be notified of the tax evasion. The convicted person's appeal against the sentencing was dismissed. Dissenting votes 3-2.
The Supreme Court HR-2018-875-A (case no. 2017/2227), criminal case, appeal against judgment.
9 May 2018
International private law. Jurisdiction. The Lugano Convention.
Following a collision in foreign waters between two ships registered abroad with foreign proprietors and managing owners, the proprietor and managing owner of one of the ships brought an action in Norway against the Norwegian insurer of the other ship. The court of appeal had allowed the case. Regarding the question whether Norwegian courts have jurisdiction, the Supreme Court found that there was no legal basis in Article 2(1) of the Lugano Convention for bringing an action directly to the courts of the insurer's domicile state. A majority of four justices concluded that Section 3 of the Convention provided a self-contained regulation of jurisdiction in insurance matters except for the express reservations in Article 8. The conditions for asserting Norwegian jurisdiction under Article 11(2), cf. Article 9(1), of the Lugano Convention were also not met. The choice of law issue had to be resolved under international private law. Section 7-6 subsection 5 of the Insurance Contracts Act did not contain a provision on choice of law, as assumed by the court of appeal, and it fell outside the Supreme Court's authority to assess whether the court of appeal's result could be upheld on any other grounds. The order of the court of appeal was set aside. Dissenting opinions 4-1.
The Supreme Court HR-2018-869-A (case no. 2017/1119), civil case, appeal against order.
4 May 2018
Criminal law. Ecstasy. Import. Participation. Sentencing.
The court of appeal had set the sentence for violation of the Penal Code 1902 section 162 subsection 2, cf. subsection 1 to two years of imprisonment. The convicted person had participated in the import of 13,000 ecstasy pills, corresponding to 1,625 grams of amphetamine of regular strength. He had been involved in the planning, kept guard during the actual import and lent his car for storage of the drugs. The Supreme Court found that a suitable sentence was two years and nine months of imprisonment. Credit was given for lengthy proceedings. The convicted person's confession was given only limited weight. Since he was not undergoing a rehabilitation program, a community sentence was not warranted. His appeal against the sentence by the court of appeal was dismissed.
The Supreme Court HR-2018-847-A (case no. 2018/277), criminal case, appeal against judgment.
4 May 2018
Criminal law. Immigration law. The Refugee Convention. Travel ban.
An Afghan national who had been expelled from Norway and subjected to a travel ban returned and sought asylum two years before the ban expired. He was convicted in the district court and the court of appeal for violation of the Immigration Act section 108 subjection 3 c, cf. section 71 subsection 2. The Supreme Court decided that the Refugee Convention article 31 no. 1 did not exempt him from punishment for violating the travel ban, as the condition that he had to have "come directly" from the territory where his life or freedom was threatened was not met. It was held that the direct travel route had been disrupted by his month-long stay at his brother's house in Austria possibly to seek asylum there. The convicted person's appeal against the court of appeal application of the law was dismissed.
The Supreme Court HR-2018-846-A (case no. 2018/21), criminal case, appeal against judgment.
17 April 2018
Criminal procedure. Seizure. Client/lawyer correspondence.
During a search at a former lawyer's office substantial data were secured. The district court attempted, pursuant to the Criminal Procedure Act section § 205 subsection 3, cf. section 204 subsection 1, cf. section 119 subsection 1, to identify the data that could not be surrendered. The court then ordered that the remaining material be surrendered to the police. The court of appeal dismissed the defendant's appeal against the district court's order. The Supreme Court, which heard the case in chambers, found that the court of appeal had not made sufficiently strict requirements to the district court's procedure to prevent the police from accessing confidential client/lawyer correspondence. The court had made a form of appropriateness evaluation for which there was no legal basis. The Supreme Court found that such regulation needs legal basis and that the search methods must be refined to enable removal of all confidential material before the surrender to the police, without this affecting the principle that guilt should be established within reasonable time.
The Supreme Court HR-2018-699-A (case no. 2017/2167), criminal case, appeal against judgment.
12 April 2018
Criminal law. Sentencing. Preventive detention. Rape. Previous convictions.
The punishment for violation of the Penal Code 2005 section 293 subsection 1 first sentence, cf. section 292 a and b, cf. section 291 b, was eight years of preventive detention, with a minimum serving time of five years and four months. The convicted person had had vaginal intercourse with a woman he had tricked into taking Rivotris, which made her incapable of resisting the act. The Supreme Court based its judgment on the normal sentencing level of imprisonment of four years for the rape, and decided that extra time for the drugging would be approximately one and a half years. Furthermore, it was emphasised that the offender had three previous convictions for rape, of which one was attempted rape of a minor, all of a very serious character, see the Penal Code 2005 section 293 subsection 1 second sentence. As a result of this, a sentencing of eight years was appropriate. The offender was sentenced to preventive detention as the danger of repetition was clear, and out of social protection concerns.
The Supreme Court HR-2018-675-A (case no. 2018/64), criminal case, appeal against judgment.
12 April 2018
Criminal law. Discriminatory or hateful utterance.
A man had been convicted in the district court and the court of appeal of violation of the Penal Code section 1902 section 135 a. He had repeatedly, and in the presence of others, called a Somali immigrant a "fucking negro". The utterance was comprised by the wording in section 135 a, and the fact that it was made during an aggressive argument did not exempt the man from criminal liability. However, the act was at the lower scale of the provision's applicability. The convicted person's appeal against the court of appeal's application of the law in the issue of guilt was dismissed.
The Supreme Court HR-2018-674-A (case no. 2018/34), criminal case, appeal against judgment.
10 April 2018
Criminal law. Sexual crimes. Aggregate sentence.
A person convicted of sexual offences in 1998 was in 2017 convicted of similar acts, all of them committed before the conviction in 1998. When applying the provision on aggregate sentences in the Penal Code 1902 section 64, cf. the Penal Code 2005 section 82, the Supreme Court found that the old offences adjudicated now were to be reviewed in light of the present sentencing level, and not in light of the sentencing level applicable at the time of the conviction in 1998. One would then have to consider the sentencing level that would have applied today if sentencing had not been intensified by parliamentary acts after 1998, and what the sentence would have been if all acts had been considered collectively. The additional sentence would thus appear after a reduction corresponding to the sentence from 1998. The court of appeal had imposed an additional sentence of two years and three months of imprisonment. The convicted person's appeal against the sentencing was dismissed.
The Supreme Court HR-2018-647-A (case no. 2017/2148), criminal case, appeal against judgment.
10 April 2018
Sales law. Defect. Direct claim. Second-hand car.
A car had been wrecked due to an error during repair carried out for a previous owner. The Supreme Court concluded, like the court of appeal, the buyer could file a direct claim against the workshop that had repaired the car, see the Consumer Purchases Act section 35 subsection 4, and that such a right could be derived from background rules of law. It was not considered whether this implied an analogous application of the Sale of Goods Act section 84 subsection 2, or if background rules of law supplemented section 84 with a non-statutory right to file a direct claim. It was held that the issue seemed to have been missed by the legislature and that policy considerations suggested such a solution. The situation was also similar to other cases where the law allowed direct claims.
The Supreme Court HR-2018-648-A (case no. 2017/1628), civil case, appeal against judgment.
23 March 2018
Tax law. Deduction. Management fee. Termination fee.
A listed company had entered into an agreement with a financial adviser regarding a management fee that would be paid upon the completion of a share sale agreement. Next, an agreement was entered into with a bidder to recommend the bidder's bid to the shareholders, however, so that the recommendation could be withdrawn if a better bid was made. In that case, the company was to pay a termination fee to the bidder. The shares were then sold to another bidder, after the board had altered its recommendation. Like the court of appeal, the Supreme Court found that the company had no right to deduction for the management fee and the termination fee, see the Tax Act sections 6-1 and 6-24. The costs and the company's potential income were not adequately connected. The concept of main purpose was applicable, and it was held that the concern for the shareholders was both the main purpose of the financial adviser's services and what triggered the board's shift of opinion and thus the termination fee.
The Supreme Court HR-2018-570-A (case no. 2018/1712), civil case, appeal against judgment
23 March 2018
Tax law. Deduction. Connection requirement. Financial contributions to societies and associations.
A company and sole proprietor of the largest business on the island municipality of Frøya had given contributions to various youth and leisure services. The company was not supported in its argument that the contributions were deductible pursuant to the Tax Act section 6-24, cf. section 6-1, as the connection between the transfers and the company's income-generating business was too remote and too derived. It was held that it was not a requirement that the societies and associations supported were to have activities with an objection connection to the company's business, that the contributions were not decisive to ensure settlement and a stable workforce and that the contribution was a completely common arrangement to promote welfare for the general population.
The Supreme Court HR-2018-580-A (case no. 2018/1712), civil case, appeal against judgment
23 March 2018
Immigration law. Revocation of residence permit.
In a case regarding the validity of revocation of residence permit for a mother and daughter from Afghanistan, see the Immigration Act section 37 subsection 1 e, the Supreme Court found, similar to lower instances, that the Immigration Appeal Board's decision was invalid. When the application was granted, it was assumed that the conditions in their home country were unstable and that the women and her daughter risked being subjected to inhuman treatment. The revocation was justified by the fact that the woman had been reunited with her partner, who came to Norway the year after. The Immigration Appeals Board found that the family could be returned to their home country, but did not consider whether the safety situation in the district had changed significantly and non-temporarily during the period from the asylum application was granted, which was an error in law. It was also held that section 37 subsection 1 e did not contain a proportionality requirement. The state's appeal against the court of appeal's judgment was dismissed.
The Supreme Court HR-2018-572-A (case no. 2017/1659), civil case, appeal against judgment
23 March 2018
Criminal law. Speeding offence. Requirement of due care. Defect speedometer.
A car driver had been convicted in the court of appeal of five out of seven speeding offences registered with automatic traffic surveillance, see the Road Traffic Act section 31, cf. section 5 subsection 1, cf. subsection 2, cf. the Road Signs Regulation section 8. The defendant had registered the flashing of the speed camera, but trusted his speedometer that displayed a speed 14-16 kilometers per hour too low. Similar to the court of appeal, the Supreme Court found that the defendant, at least after having passed a flashing speed camera twice, had reason to check whether the measurement the car was wrong. Thus, he was negligent when continuing to trust his speedometer after two such flashes. Neither his short residence in Norway nor the fact that his driver's licence was recently obtained could have a mitigating effect on the assessment of due care in a common speeding offence like the one at hand. The defendant's appeal against the court of appeal's judgment was dismissed.
The Supreme Court HR-2018-573-A (case no. 2017/2031), criminal case, appeal against judgment
23 March 2018
Tort law. Insurance. Recourse.
A foundation owned by a religious community was in charge of the building of a mosque. During the building, two neighbouring properties suffered subsidence damage. The insurance company that had covered the repair costs after the subsidence damage submitted a recourse claim against the foundation. The Supreme Court found, contrary to the majority of the court of appeal, that the foundation had to be counted as a business entity, see the Compensatory Damages Act section 4-2 subsection 1 b. It was held that the foundation engaged in extensive financial activities, that the building owned and managed by the foundation was used by a large religious community with many members and that the foundation had received professional assistance with the building and the management of the foundation. The insurance company's recourse claim against the foundation, see the Compensatory Damages Act section 4-3, was thus valid. The judgment of the court of appeal was set aside.
The Supreme Court HR-2018-577-A (case no. 2017/1620), civil case, appeal against judgment.
22 March 2018
Criminal law. Sentencing. Gross negligent rape.
The punishment for violation of the Penal Code 2005 section 294, cf. section 291 b, cf. 292 a, was one year and six months of imprisonment. The rape had been committed against a woman who because of sleep and/or intoxication was incapable of resisting. The Supreme Court held that there exists no, nor should there exist any, normal sentencing level for gross negligent rape. The sentencing must be based on an assessment of the specific circumstances. In the case at hand, there were neither aggravating nor mitigating circumstances to consider in the sentencing. The court of appeal had decided one year of imprisonment. With regard to the signaled need for stricter sentencing in such cases in the preparatory works, the Supreme Court increased the sentencing to one year and six months of imprisonment.
The Supreme Court HR-2018-568-A (case no. 2017/2036), criminal case, appeal against judgment.
21 March 2018
Criminal law. Confiscation.
In a case where three men had been convicted of hashish cultivation, one was also sentenced to sustain confiscation of half of the value of the residence used, see the Penal Code 1902 section 35 subsection 3, cf. the Penal Code 2005 section 69. The residence was fully mortgaged, and the defendant owned no other assets. The Supreme Court held that a value confiscation would affect the defendant much harder than an object confiscation of the residence, as most of the selling price in a realisation would be used for coverage of the bank's claim. With a value confiscation he would have been liable for a substantial monetary claim from the bank, as opposed to what would have been the result with an object confiscation of the residence. Under these circumstances, the Supreme Court concluded that a value confiscation was disproportionate. The defendant was released from the confiscation claim.
The Supreme Court HR-2018-556-A (case no. 2017/2077), criminal case, appeal against judgment.
21 March 2018
Tort law. Motor vehicle liability. Causality. Whiplash. Central sensitisation.
A woman, now 27 years old, had claimed damages pursuant to the Motor Vehicle Liability Act for permanent disability due to chronic pains and exhaustion caused by a whiplash from a traffic accident in 2002. The Supreme Court held that the course of injury – including a massive worsening in terms of intensity and localisation from 2003 – was not in accordance with what could be expected from a soft-tissue injury after a whiplash. It was further held that neurological hypersensitivity to pain – referred to as central sensitization – could not be excluded as a possible explanation for atypical course of pain in whiplash cases. However, only a small part of the woman's total pain and afflictions was held to be due to central sensitization. The Supreme Court concluded that there was no basis for establishing actual causality between the whiplash trauma in 2002 and the woman's current pain experience. Judgment was given in favour of the insurance company.
The Supreme Court HR-2018-557-A (case no. 2017/342), civil case, appeal against judgment
13 March 2018
Criminal law. Serious bodily harm. Sentencing.
The punishment for violation of the Penal Code 2005 section 274 subsection 1, cf. section 271, was imprisonment of two years and three months, of which six months were suspended. The case concerned serious and unprovoked violence resulting in severe injuries. The defendant was sentenced to joint punishment including the suspended part of two previous convictions. The Supreme Court applied a sentencing level of one year and six months of imprisonment. The defendant's confession was later found mitigating. As for the significance of the previous convictions, it was stated that the Penal Code section 79 b was not applicable when the suspended part of the previous sentence was deemed served in custody. In the second of the previous convictions, a large part of the sentence was suspended due to lengthy proceedings. The new acts had been committed during the parole given for this judgment. The Supreme Court held nevertheless that there was basis for joint punishment including the suspended part of this judgment. When deciding the length of the joint punishment, it had to be borne in mind that the lengthy proceedings were the reason why the previous conviction was suspended.
The Supreme Court HR-2018-491-A (case no. 2017/2114), criminal case, appeal against judgment
12 March 2018
Criminal law. Drugs. Joint punishment. Danish conviction.
A Danish citizen had been released on parole in Denmark for crime of gain with time remaining of 582 days. Shortly after the release, he committed serious drug crimes in Norway involving dealings with a total of 37 tonnes of hashish, see the Penal Code 2005 section 232 subsection 1, cf. section 231 subsection 1, cf. sections 15 and 16. The Supreme Court held that sentencing for the drug crime alone should be up to four years of imprisonment. As for the issue of joint punishment with the remaining time from Denmark, the Supreme Court mentioned the preparatory works of the Act relating to enforcement of Nordic judgments on punishment, etc. section 14, stating that a precondition for the Act was that the courts make an individual assessment of whether to give joint punishment based on the state of the law in the defendant's home country. In the individual assessment, it was emphasised that it concerned serious drug crimes committed shortly after the parole was granted, and that both convictions were for crime of gain. There was thus basis for joint punishment. The majority of four justices let one year of the remaining punishment be part of the joint punishment, which was decided to be four years and ten months of imprisonment. The same majority also found that the defendant's consenting to prolongation without being present was not be given weight at the sentencing.
Supreme Court HR-2018-486-A (case no. 2017/1912), criminal case, appeal against judgment
9 March 2018
Immemorial usage. The Finnmark Estate Agency. Management of natural resources.
A regional society in Nesseby in Finnmark, holding indisputable and extensive rights of use based on immemorial use in a large part of the municipality, see the Finnmark Act section 5 subsection 2, asserted that they, and not the Finnmark Estate Agency, had a right to manage the renewable natural resources to which the rights of use related. The Supreme Court, having heard the case in plenary, concluded as opposed to Finnmark Land Tribunal that the inhabitants had not exercised their rights of use in a way that they had also acquired rights of management based on immemorial use. This entailed that the management authority ascribed to the Finnmark Estate Agency as landowner persisted pursuant to the Finnmark Act chapter 3. Neither the ILO Convention no.169 nor other rules under international law could give any other result. Judgment was given in favour of the Finnmark Estate Agency to the extent the judgment by Finnmark Land Tribunal was appealed.
The Supreme Court HR-2018-456-P (case no. 2017/860), civil case, appeal against judgment
7 March 2018
Tort law. Patient injury. Lost ability to do homework.
A boy born in 2001 developed narcolepsy after having taken the swine flu vaccine in 2009. He had received standard compensation pursuant to the Patient Injury Act section 3-2a, as the provision read before 1 March 2018, cf. the Patient Injury Act section 2 subsection 1 d and section 3 subsection 2. The Supreme Court concluded that he could not claim compensation for the lost ability to do homework in addition to the compensation he had already received, and referred to the previous wording in the Patient Injury Act sections 3-2 a and section 3-1, to statements in the preparatory works and to permanent and consistent case law.
Supreme Court HR-2018-442-A (case no. 2017/1690), civil case, appeal against judgment.
1 March 2018
Tort law. Strict liability for animals. Acceptance of risk. Horse-riding accident.
A woman who was permanently injured when thrown off a horse she had rented at a horse centre was supported in her claim for damages against the centre pursuant to the provision on strict liability in the Compensatory Damages Act section 1-5 no. 1. The Supreme Court held, as a starting point, that there was room for the concept of acceptance of risk in the application of section 1-5 no. 1, but that considerable care had to be taken before using it as a basis for denying the claim in addition to section 5-1. In practice, there was limited room for applying this concept in connection with renting of ordinary riding school horses. In its individual assessment, the Supreme Court concluded that the woman could not be deemed to have accepted the risk of being thrown off the horse the way it happened.
The Supreme Court HR-2018-403-A (case no. 2017/1252), civil case, appeal against judgment
28 February 2018
Contract law. Housebuilding. "Reduced value".
A buyer had entered into a contract with a developer regarding purchase of a house under construction. The house was by mistake built more northeast than agreed, resulting in a narrower passage between the house and the neighbouring property and an increased access between the houses. Correction was deemed disproportionately expensive, and the contractor had not profited from the mistake. Pursuant to the Housebuilding Act section 33 subsection 2, the buyer was thus entitled to a price reduction corresponding to the "reduced value" the defect entailed. It was not held before the Supreme Court that this had affected the market value of the house. The Supreme Court's majority of three justices concluded that a price reduction could be estimated by discretion in exceptional cases taking into account the subjective reduction in value the defect represented to the buyer, although the defect had not affected the market value. A price reduction of NOK 85,000 was decided, which had been accepted by the developer to begin with under conditions that had not been met. Dissenting votes 3-2.
The Supreme Court HR-2018-392-A (case no. 2017/1654), civil case, appeal against judgment
28 February 2018
Tax law. Private equity funds. Management fee. Deduction.
Norwegian limited liability companies having invested in private equity funds registered in Guernsey had been subjected to so-called partner assessment pursuant to the Tax Act section 10-41, cf. section 10-40 under which the individual partner is liable for tax. The Supreme Court held that the management fees that the fund paid to a fund manager had to be split in the taxation. The part of the fee that concerned management work was deductible pursuant to the Tax Act section 6-24 subsection 1, while the transaction work – the search for and identification of relevant investment projects – did not give a right to deduction pursuant to the Tax Act section 6-24 subsection 2. The tax law principle of main purpose was not applicable. These concerns made basis for the assessment. However, the distribution between a tax-free management part and a taxable transaction part was not well funded. The tax assessment was thus set aside.
The Supreme Court HR-2018-391-A (case no. 2017/1406), civil case, appeal against judgment
28 February 2018
Criminal law. Negligent vehicular homicide. Sentencing.
The punishment for violation of the Penal Code section 281 was eight months of imprisonment, of which two months were suspended. A professional driver who had reversed a large lorry on a walking and cycling path close to an elementary school 15 minutes before school started had hit an eleven-year old cyclist, who was killed. The driver had not checked the car's rearview camera or looked in the side mirrors. The negligence was serious as the situation was extraordinary and demanded special attention and alertness. Three months of the punishment were suspended due to his sole responsibility for a child with special needs.
The Supreme Court HR-2018-389-A (case no. 2017/1939), criminal case, appeal against judgment
28 February 2018
Criminal law. Sentencing. Misuse of position.
The punishment for five violations of the Penal Code 1902 section 193 subsection 1 and one violation of section 219 was three years and three months of imprisonment. The convicted person, a former doctor, had committed sexual acts on five women under the pretence they were gynaecological examinations. He was also convicted of abuse against his former girlfriend. The offence was deemed to be at the lower end of what is comprised by the Penal Code 1902 section 219 subsection 1.
The Supreme Court HR-2018-390-A (case no. 2017/1761), criminal case, appeal against judgment
27 February 2018
Contract law. Housebuilding. Penalty. Inaction.
The buyer of a flat under construction, which was delayed, had repeated a previously submitted claim for liquidated damages towards the contractor 10 months after the takeover and almost eight months after having received a settlement statement from the real estate agent. The Supreme Court held, with reference to the wording of the law and the preparatory works, that the time limit in the Housebuilding Act [bustadoppføringslova] section 48 subsection 3 did not apply to the buyer's claim for liquidated damages. This was a negligence claim and not necessarily part of the final settlement. It is only the buyer's objections that are lost with the exceeding of the time limit, and not his claim. Payment of the originally agreed purchase price did also not entail that the claim for liquidated damages had lapsed, since the final settlement of the accounts between the parties was incomplete due to the extra work. There was also no basis for deeming the claim invalid pursuant to non-statutory rules on inactivity. As long as the contractor assumed that the buyer was waiting for additional requests from him, he could not act as if the buyer had abandoned his claim for liquidated damages, and the subsequent period of approximately four months before the claim was submitted did also not entail that the claim had lapsed.
The Supreme Corut HR-2018-383-A (case no. 2017/1227), civil case, appeal against judgment
18 January 2018
Company law. Contract law. Subscription obligation.
In a capital increase in a limited liability company, a shareholder had given the chair of the board an irrevocable power of attorney to subscribe for a specific number of shares and undertaken to pay the subscription price within a certain date. Because the subscription price was not paid, no notification of the capital increase was sent to the Register of Business Enterprises within the time limit in the Companies Act section 10-9 subsection 1, with the result that the capital increase could not be registered, see section 10-9 subsection 3.
The Supreme Court concluded unlike the lower instances that the subscriber's payment obligation had not lapsed, since the time limit in section 10-9 subsection 1 had been exceeded due to the subscriber's own default. A mutually binding agreement had been entered into between the company and the subscriber under which the company was to issue 75,000 shares in return for the subscription price. Although it follows from the wording in section 10-9 subsection 3 that the subscription was no longer binding since the subscription price had not been paid within the time limit in section 10-9 subsection 1, this was not decisive as the time limit had been exceeded due to the subscriber's default. If the lawmaker had meant to deviate from such a basic contract law principle and implement a rule allowing the party to evade an obligation by breaching it, this should have been clearly stated. The court of appeal's judgment was set aside.
The Supreme Court HR-2018-111-A (case no. 2017/1573), civil case, appeal against judgment
18 January 2018
Criminal law. Application of law. Violence in close relations.
A man had been convicted in the court of appeal of violation of the Penal Code 2005 section 282. He was previously living with the aggrieved party. On one occasion, when he had met her on the street, he had grabbed her hair and thrown her to the ground, threatened her and destroyed her mobile telephone. In addition, there was an episode where he had gone to see her despite a restraining order, one where he had followed her and one where he had knocked his head against the head of her new boyfriend. The Supreme Court held that all these events were relevant in the decision whether he could be convicted pursuant to section 282. That this was outside the provision's core area of application was not decisive. However, the episodes altogether were not so serious or of such a scope that they could be regarded as violence in close relations. The acts were nevertheless punishable pursuant to the Penal Code 2005 section 168 b, section 263, section 266, section 271, section 272, section 351 subsection 1, cf. section 79 a. The punishment for these acts and for two offences for which a final conviction had been handed down was imprisonment of 90 days.
The Supreme Court HR-2018-112-A (case. no. 2017/1909), criminal case, appeal against judgment
17 January 2018
Criminal procedure. Seizure. Lawyer's digital files.
In connection with investigation of a former lawyer, the police had seized a large number of digital files. The files were submitted to the district court for a decision as to whether they could be surrendered to the police, see the Criminal Procedure Act section 205 subsection 3. The Supreme Court, having heard the case in chambers, concluded unlike the court of appeal that the prohibition against seizure in the Criminal Procedure Act section 204 subsection 1, cf. section 119 subsection 1 was applicable, irrespective of whether the police, based on the nature of the files, could have been expected to have access to the files themselves, or the lawyer had sent the files to a public authority, including a court, and the police would have been able to access them there. It was deemed decisive that there is a difference between allowing the police to search for information at the recipient bodies and giving the police a joint and direct access to the digital files that make basis for the communication with the public authorities. A different system would also entail a risk that the police get access to information they are prohibited from accessing through seizure of a lawyer's files.
The Supreme Court HR-2018-104-A (case no. 2017/1907), criminal case, appeal against order
17 January 2018
Criminal procedure. Compensation for defence costs. Lawyer's timesheets.
In connection with the hearing of a claim for compensation for defence costs after an acquittal in a large case involving economic crime, see the Criminal Procedure Act 438 and section 441, the court of appeal had ordered the acquitted person to submit his lawyer's timesheets and documentation for costs to Økokrim [the national authority for investigation and prosecution of economic and environmental crime]. The Supreme Court, having heard the case in chambers, referred to the lack of such a requirement for documentation in connection with statements of costs in civil cases, see the Dispute Act section 20-5 subsection 3, and held that such an approach should be applied in cases comprised by the Criminal Procedure Act section 438. The fact that the acquitted person had handed the material to the court of appeal on the condition that it was not submitted to Økokrim, could not give a different result. The court of appeal's decision was set aside.
The Supreme Court HR-2018-109-A (case no. 2017/1940), criminal case, appeal against decision
17 January 2018
Trademark right. Infringement. Damages.
A company selling a silage additive to the fishing industry had after a switch of suppliers attached labels on the packing showing a trademark belonging to the original supplier. The Supreme Court concluded unlike the lower instances that this was an infringement of the trademark proprietor's exclusive right pursuant to the Trademarks Act section 4. The Supreme Court, guided by case law from the European Court of Justice, held that the Trademarks Act section 4 must be interpreted as giving protection only if the use is within one of the functions of the trademark, including its guarantee of origin and quality. However, it was sufficient for establishing infringement that there was a risk that the trademark's functions were infringed by the relevant use. This condition was deemed fulfilled. The fact that the use took place after the sales had been completed and that the company's fixed circle of customers had been notified of the switch of suppliers could not give a different result. The damages payable for the infringement pursuant to the Trademark Act section 58 were stipulated to five percent of the purchase price of the delivery in question, which constituted NOK 80,000.
The Supreme Court HR-2018-110-A (case no. 2017/1490), civil case, appeal against judgment.