Ersättning för rättegångskostnader i förvaltningsprocessrätt – En utredning om HFD 2022 ref. 10 strider mot rätten till en rättvis rättegång

Sammanfattning: The study’s ambition is to examine the order of reimbursement of legal costs in the administrative law procedure and how it compels to the right of a fair trial. In particular, the ruling by the Supreme administrative court (HFD 2022 ref. 10) will be exposed and criticized. The paper uses a critical legal dogmatic method. In the administrative procedure, the principle of set-off applies, which means that each side bear their own legal costs. The prominent role of the court has been motivated as the purpose of this system. According to legal writings the change of the system from a one-party process to a two-party process has caused the system to take a step towards an accusatory procedure, where there is a greater need for counsel. The current order refers to the rules on damages for a person who wants cov-erage for their legal costs. It requires a lot for the public to be negligent ac-cording to the culpability assessment in Ch. 3 art. 2 of the Tort Liability Act. According to legislative history, it is not enough that the application of the law is incorrect. Only obviously incorrect application of the law can establish lia-bility for damages. When the application of the law does not guarantee an ab-solute right, the assessment of the public’s culpability is, on the other hand, not as generous. Then it’s likely that responsibility will be demanded. From practice, it appears that it may be against the right to a fair trial not to have one’s legal costs reimbursed by the public as a winning individual party. However, the costs must be justified in terms of the nature and value of the case. Compensation does not have to be awarded in the same process to which the cost relates, but one should not be faced with difficulties in another process to get these justified costs reimbursed. The Supreme Administrative Court’s decision of rejection is considered con-trary to the right to a fair trial because of the difficulty to get one’s legal costs reimbursed through damages. It is, on the other hand, possible for the general court to compensate such costs by considering a decision of rejection as a limitation of an absolute right, through Ch. 3 art. 2 of the Tort Liability Act.