COST OF COSTS OF COURT COSTS AT LAW
The issue of reimbursement of attorney’s fees is not only a matter for the parties as it is their means, but also for the lawyers themselves, as it is their reputation. And if the introduction of the “lawyer monopoly” was perceived by many as negative, the changes in the procedural codes, which eliminated all the earlier limits and barriers, which provided for the possibility of full reimbursement of court costs for a lawyer, were welcomed. Moreover, optimistic. It is now possible to receive full compensation.
However, reimbursement for a lawyer is not as good as one would like. Courts, parties and their attorneys seem to live at different times and often perceive and evaluate differently the cost of legal services and the costs of professional legal assistance, their appropriateness and validity. Sometimes it is absurd when the courts calculate how many minutes a lawyer has acted in a court hearing and reduce the amount of expenses, because this is not considered mandatory by the court.
What are the courts paying attention to, what is the amount of court costs and whether it is possible to obtain full legal costs for a lawyer?
Criteria for assessing the proportionality and validity of costs and legal services
The procedural codes set out the conditional “benchmarks” that the court must take into account when deciding whether to reimburse professional legal aid costs. In deciding whether or not to allocate attorney’s fees to court, the court should consider the following: whether these costs are related to the case; whether the amount of these costs is commensurate with the complexity of the case and the complexity of the lawyer’s work, the lawyer’s time spent performing the work and the volume of services provided, the cost of the claim, the value of the case to the party; the conduct of the parties during the hearing of the case; the parties’ actions regarding the pre-trial settlement of the dispute; whether the outcome of the case could have affected the party’s reputation and whether the case had raised public interest.
At the same time, the codes do not specify any criteria by which the complexity of the case and the work performed by the lawyer should be evaluated, whether the costs are commensurate with the amount of work performed and the time spent by the lawyer to perform such work.
Such inaccuracy and evaluation of the criteria leads to the courts charging in some cases hundreds of thousands of hryvnias for the professional legal assistance of lawyers, while in others, they either refuse to reimburse them at all or are limited to collecting quite symbolic sums.
As a result, the most common motivation for courts to reduce costs is the disproportionate cost of legal aid with the complexity of the case, time spent by the lawyer to perform the relevant work (providing services), the amount of work performed (services rendered), the cost of the claim.
So how do the courts evaluate the proportionality and reasonableness of the costs and what do they pay attention to?
The complexity of the case
Codes do not say how to evaluate the complexity of the case and what to consider. Therefore, in practice, courts have different approaches to determining the complexity of the case. Some – pay attention to the subject of the dispute and the nature of the disputed legal relations, others – take into account the number of participants in the process, the circumstances to be clarified, the evidence to be evaluated, the amount of the procedural documents submitted. Sometimes the courts take into account the overall length of the proceedings, the number of court hearings, whether they were held with or without summons.
The complexity of the case may be due to both the substance of the dispute and the nature of the disputed legal relationship (non-standard dispute, atypical legal relations), as well as the number of participants, the amount of evidence, the number of meetings. However, just the number of participants or meetings and the considerable volume of documents and evidence does not mean that the case is complicated.
Many participants can be involved in the case, a large number of meetings can be appointed, and the dispute and the case can be complicated. Therefore, the essence of the case must be considered first.
The complexity of the work performed
Just like “complexity of the case”, this criterion is also evaluative and subjective, so in each case the courts evaluate it at their own discretion. They take into account everything from analysis of documents and legislation to gathering evidence, drafting procedural documents, participating in court hearings.
Procedural law does not contain clear criteria that a court must consider when deciding whether to pay attorney’s fees, and therefore one can only hope that the courts of cassation will formulate common approaches to the court’s assessment of the proportionality and justification of the costs incurred by the parties, so as to enable the parties to pay the costs. full reimbursement of legal costs.
Author: Ivan Ischuk