The HD decides that the HovR shall hear cases about security measures according to the RB

The HD decides that the HovR shall hear cases about security measures according to the RB

A licensee refuses to pay for software and its support because they believe the product and service are of poor quality. The licensor therefore announces that it will refuse the licensee continued access to the program if the invoices are not paid. Since the licensee does not consider itself liable for payment, but estimates that the damage will be unforeseeably large if the program cannot continue to be used, the licensee requests that the court order a safety measure under Chapter 15. Section 3 of the Code of Procedure. The District Court considers that the conditions do not exist for ordering a security measure and the Court of Appeal chooses not to grant leave to appeal.However, the Supreme Court finds that the issue has not been sufficiently elucidated in case law and therefore decides that the Court of Appeal should examine the issue on its merits.

The company Nordbro has signed an agreement with Aptic for software license and support. However, Nordbro is of the opinion that neither the software nor Aptic’s support meets the agreed standard. Consequently, Nordbro considers that it has no liability for the invoices, amounting to almost 1.5 million, issued by Aptic for support. According to the parties’ agreement, the license key is provided for one year at a time. However, because of the unpaid invoices, Aptic sends a license key that is only valid for one quarter and also informs Norbro that it is considering withholding the license key entirely if the support invoices are not paid.

When the parties fail to reach an agreement on the dispute, Nordbro takes the matter to court. Due to expected processing times at the District Court and the fact that the license key will soon expire, Nordbro applies for Aptic to be ordered to hand over license keys according to the agreement through a so-called security measure under Chapter 15. Section 3 of the Code of Procedure. A precautionary decision means that in urgent cases, without prior trial, a court decides on measures pending trial. However, a decision on security measures can only be taken if there are strong reasons. Nordbro believes that the damage will be incalculably large if the license key expires before the next delivery and that there are therefore conditions for deciding on a security measure.

The district court finds that there are no sufficiently strong reasons and therefore rejects the application, whereupon Nordbro appeals to the Court of Appeal. The Court of Appeal states that leave to appeal is required and that such permission should only be granted if there is reason to doubt that the District Court has reached a correct decision or if it is important for the future application of the law. As the Court finds that none of the requirements are met, it considers that there are no grounds for granting leave to appeal and Nordbro appeals to the Supreme Court. The Supreme Court finds that the question of whether the conditions for a security measure exist has not been sufficiently clarified in case law. It is therefore considered that it is important for the application of the law that the case be examined by a higher court and decides that the Court of Appeal should examine the question on the merits.