5.1 Liability for Case Costs
One obvious objection against the Nordic Trustee’s title to sue in its own name concerns the liability for case costs. Despite the Nordic Trustee being formally party to the court proceedings, the court will not decide on the rights and obligations of the Nordic Trustee itself. Nevertheless, the Nordic Trustee will be liable for the case costs pursuant to section 20‑2 of the Civil Procedure Act. Reimbursements from the bondholders will have to be sought by the Nordic Trustee in due course.(1) The Nordic Trustee may require an indemnity from the bondholders before taking certain actions, see clause 16.4 (h) of the standard bond terms (n 6). In theory, the Nordic Trustee may become short of funds, which gives rise to the question of whether the issuer may claim the excess from the bondholders.(2) The last published accounts of the Nordic Trustee from 2015 show an equity of NOK 9,331,000 compared to approximately NOK 25,000,000 at the time of the first suit in 2010; refer to the accounts publically available at <www.proff.no/regnskap/nordic-trustee-asa/oslo/finansiering/Z0I3KQH8/> accessed 30 March 2017
Noting that the bondholders are the real parties in interest, the issuer is likely to succeed with an argument that the bondholders are jointly and severally liable for these rather limited costs under Norwegian law. After all, the legal action is initiated by the Nordic Trustee on the bondholders’ behalf in order to preserve their collective interests. As further explained in sub-section 5.3 below, the ruling on cost will however not be enforceable against the bondholders as if the judgment were obtained against them directly.(3) See section 4-7 of the Enforcement Act of 1992, which states that enforcement can only be sought against the named claimant or respondent.