Legal costs incurred before action is brought cannot be recovered where the personal injury has not been substantiated
Supreme Court judgment of 20 October 2026, HR-2026-2260-A (case no. 26-022408SIV-HRET), civil case, appeal against Agder Court of Appeal's judgment of 15 December 2025.
A (Advocate Flemming Marius Karlsen) v. Gjensidige Forsikring ASA (Advocate Merete Anita Utgård)
A man was involved in a road traffic accident and subsequently brought a claim against the motor insurer for chronic headache. He sought compensation for financial loss resulting from the headache, as well as reimbursement of legal costs incurred before the action was brought.
The District Court had finally determined that there was no causal link between the traffic accident and the health complaints. The question before the Supreme Court was whether he could nevertheless recover his legal costs.
The majority of the Supreme Court held that legal costs incurred before proceedings are commenced do not occupy any special position compared with other heads of loss in personal injury cases. Such costs must be assessed under section 3-1 of the Compensatory Damages Act and require a causal link between the accident and the alleged personal injury. As no such causal link existed, the legal costs could not be recovered as a loss deriving from the personal injury.
The majority further held that the legal costs could not be recovered as pure economic loss under section 4-1 of the Compensatory Damages Act. The costs of legal assistance did not constitute an independent loss that had arisen regardless of the alleged personal injury. On the contrary, the claim was derivative of and linked to the asserted personal injury claim.
One justice dissented. She took the view that the costs had been incurred as a result of the claimant's investigation into whether there was a causal link between the accident and the personal injury. The costs were therefore a consequence of the accident, even though the personal injury ultimately proved not to be.
The judgment clarifies that legal costs are to be treated in the same way as other claims for compensation arising from an alleged personal injury.
Area of law: Tort law. Personal injury. Pure economic loss.
Key paragraphs: 45, 53, 56
Justices: Webster, Steinsvik, Vang, Steen, Heggberget.