4.3 Literature
The government’s failure to respect legitimate expectations may entail a certain government measure being invalid, for instance if a valid decision or license giving someone a legal right is cancelled without taking sufficient account of established expectations and the loss caused to the private party. This would seem to be the main circumstance firmly established in the literature as a consequence of breach of legitimate expectations. It is less clearly established in the literature whether legitimate expectations can give rise to liability in cases of valid decisions.
Smith and Eckhoff seem to assume such a liability lacks a legal basis, at least de lege lata, although the question is not discussed in any depth.(1) Thorstein Eckhoff and Eivind Smith, Forvaltningsrett (Universitetsforlaget, 10th edn., 2014) p. 315, and see also p. 483 et seq.
Other writers are more positive. Hagstrøm, in his extensive treatment of public liability, writes that breach of “special expectations” may provide a distinct basis of liability in certain cases of valid government measures, referring to the established principles of public liability in cases relating to errors of registration in public property registers, but also to an established principle of public liability in cases of reliance on planning regulations that are subsequently changed.(2) Viggo Hagstrøm, Offentligrettslig erstatningsansvar (Tano, 1987) pp. 240-241. Hagstrøm seems to assume that this is a strict liability, i.e. irrespective of culpa, and he also argues that it may be extended to other cases where “the citizens have such legitimate expectations that violations ought to incur objective liability towards the public”.(3)Ibid. p. 242.
Graver does not discuss government liability for breach of legitimate expectations as such.(4) Hans Petter Graver, Alminnelig forvaltningsrett (Universitetsforlaget, 4th edn., 2015) p. 547. His view may nonetheless be seen as assuming that creation of false expectations can lead to liability for the government under ordinary principles of tort law, which is also the view taken in Bjarte Thorson’s doctoral thesis on liability for pure economic loss (formuestap).(5) Thorson (2012) p. 91 et seq. This fails, however, to differentiate a distinct government liability for violation of legitimate expectations from the ordinary liability for negligent misrepresentation.
Hagstrøm and Stenvik also seem to consider a liability for disappointed expectations as being mainly an information liability based on the creation of false expectations, and they do not differentiate between government liability and the liability of individuals and other legal persons.(6) Viggo Hagstrøm and Are Stenvik, Erstatningsrett (Universitetsforlaget, 2015) p. 56 et seq. Their analysis nonetheless in reality goes quite far towards arguing for a principle of legitimate expectations, specifically relying on the criteria established in Rt. 1981 and Rt. 1990 p. 1235, to which we revert below.
The fact that a principle of legitimate expectations has yet to become firmly established in the literature as a distinct basis of government liability, does not seem to reflect any deeply entrenched opinion against such a principle. Hagstrøm is the only writer discussing such a principle at any length, and he seems to maintain that Norwegian law does recognize such a principle, even irrespective of fault. Moreover, as we revert to immediately below, there is quite strong support in court practice for the existence of a principle of legitimate expectations as a distinct basis of government liability. In view of this, it is actually somewhat surprising that such a principle has not been more clearly recognized in the literature.