When you decide to file a lawsuit, part of the process of creating a case file at the courts involves specifying the individuals and companies that are parties to the case on the digital case portal.
Once the case has been brought, the starting point is that the parties to the case cannot subsequently be freely changed if, for example, it transpires that the wrong company has been named as a party to the case.
The restriction is partly out of consideration for both the opposing party and third parties who may become involved, because bringing a case against someone is both quite intrusive and resource-intensive.
The Supreme Court has so far taken a restrictive approach to the possibility of replacing the original defendant with a new defendant, but the picture is now becoming more nuanced.
Previous practice required consent
The right to replace parties in a lawsuit is not something that features prominently in legal theory, nor is it directly regulated in legislation.
The starting point has so far been that if the plaintiff, defendant, and third party agree, the parties to the case can be replaced without any problems.
What should be done if the parties cannot agree on the replacement?
In that case, no substitution can take place, and you are essentially required to withdraw the case and file a new lawsuit, specifying the correct parties.
Until the Supreme Court's recent rulings in 2022, the key issue in the assessment has been whether the replacement results in a "change in the defendant's identity" that consists of more than just a correction of, for example, an incorrectly stated company name, because in that case there is no legal basis for carrying out the replacement.
This line was described by then-judge Ulla Otken in an article back in 2002 (U2002B.96), and it has been followed until now.
The Supreme Court sets a new precedent
In two new rulings from June and November 2022, the Supreme Court has overturned rulings from the Western High Court and the Eastern High Court, respectively, thereby setting a new precedent regarding the possibility of replacing the parties to a case.
In both cases, the high courts adhered to the restrictive previous practice, whereby it was not possible to replace the parties to the case, on the grounds that the desired change entailed a "change in the identity of the party," which did not fall within the scope of Section 349(2) of the Administration of Justice Act, (2) of the Danish Administration of Justice Act, which allows the plaintiff to remedy deficiencies in a writ of summons if the writ does not meet the requirements of the Danish Administration of Justice Act.
In its ruling from June (U 2022.3836 H), the Supreme Court, after a specific assessment, allowed the defendant to be changed on the case portal.
The case concerned an occupational injury where the plaintiff, A, who was employed by B at the time of the injury, had incorrectly named the claims handling company, C, which had handled the occupational injury case for B, as the defendant on the digital case portal in connection with the filing of the lawsuit.
Later that day, A had added a document with supplementary case information entitled "summons." The document stated that the case had been brought against the employer, B, who was represented by C. The question was then whether A could be allowed to change the defendant from C to B without consent.
The Supreme Court accepted the change of defendant on the grounds that B should have realized that the case was actually directed against B and concerned the company's possible liability for A's work-related injury.
The Supreme Court found that the fact that C had been mistakenly entered as the defendant had not affected B's ability to represent his own interests during the proceedings.
In accordance with the June ruling, the Supreme Court reached a similar conclusion in its November ruling (U 2023.574 H).
The course of events was very similar to case U 2022.3836 H, where the lawsuit on the case portal was mistakenly brought against a housing management company, but should instead have been brought against a general housing organization.
In its ruling, the Supreme Court stated that the public housing organization must have been aware from the outset that the case concerned disagreements between the public housing organization and the defendant. Therefore, the typing error could not be assumed to have affected the public housing organization's ability to represent its interests in the case.
In both decisions, the Supreme Court places particular emphasis on whether the incorrect identification of the defendant in the case has a specific impact on the ability of the correct defendant to protect his interests.
In this connection, particular importance is attached to whether the correct defendant was already aware of the case when it was brought and could therefore realize that the case concerned the party in question – and not the party incorrectly named.
In other words, it will be crucial that the correct defendant becomes aware of the lawsuit early on in the process and is thus not actually subjected to any particular inconvenience by being named as the correct defendant in the lawsuit.
What should you be aware of?
Firstly, the Supreme Court's rulings emphasize what has always been the case: when specifying parties on the digital case portal (minretssag.dk), it is important to ensure that the correct defendant is specified.
If a party is nevertheless named as the defendant by mistake, it is important to ensure as soon as possible that the correct defendant is made aware of the lawsuit, so that the court does not have to take any special consideration of the party in question – and any replacement of the defendant should therefore be permitted in light of the Supreme Court's new line.
CLEMENS' litigation and arbitration team regularly reports on new developments in case law. If you have any questions about litigation or need assistance in a specific case, please feel free to contact us.
