Uppgiftsplikten – illusorisk och bortglömd? – 42 kapitlet 8 § 1 stycket 4 meningen RB i ljuset av kontradiktorisk informationsanskaffning

Sammanfattning

In civil cases, the outcome is determined by the parties' access to evidence. The responsibility for locating, collecting, and presenting evidence lies with the parties, due to the principle of contradiction. The parties are motivated to disclose and present only the evidence that favours their case, which also means they have an interest in concealing unfavourable information. Consequently, an under-informed party may struggle to provide sufficient evidence. The Swedish Code of Judicial Procedure offers limited tools for gathering evidence, requiring the party seeking information to already know about the evidence in advance, reflecting the contradictional approach to information gathering. Chapter 42 section 8 paragraph 1 sentence 4 of the Swedish Code of Judicial Procedure, states that a party is obliged to disclose any written evidence it holds. This rule is referred to as the duty to provide information. This paper aims to examine the meaning of the duty, the requirements it imposes on the party providing information, and critically analyse how it aligns with the contradictional approach to information gathering in the Swedish Code of Judicial Procedure. The paper first examines how contradictional information gathering is regulated and compares it to alternative systems, where parties cooperate rather than compete. It then examines the duty to provide information, the requirements it imposes on the party providing the information, and the opportunities and limitations it entails for the party seeking the information. These include requirements of possession, written form, probative significance and thus which legal facts the listed evidence must prove. It also examines at what point in the process an injunction can be issued, and whether the court can conduct a proportionality evaluation and partially grant a request to provide information, or if such a request has mandatory effect. A chapter is then devoted to describing possible sanctions for a party that fails to produce a list of its written evidence or does not produce it truthfully. In summary, the paper concludes that the duty to provide information lacks effective sanctions, and that its scope and requirements appear to be unclear. The effectiveness of the sanctions, the in-court hearing, and the evidential value are compromised by the difficulty of verifying the accuracy of the list and the parties' self-interest in withholding unfavorable information. It is concluded that the obligation to provide information is mandatory, but it is proposed that the court should be able to grant partial approval if the conditions are clearly defined. Furthermore, it is noted that the wording of the duty to provide information indicates elements of cooperative information gathering. However, the systematic placement of the rule, combined with the fact that the party seeking information has already stated the claims and grounds in its lawsuit, indicates that the duty to provide information remains consistent with the contradictional approach to information gathering in the Swedish Code of Judicial Procedure.