How to recover the cost of legal assistance from your opponent in court ?!
Reading time: 18 min.
The analysis of judicial practice for the period from 09/21/2018 to 08/30/2018 on the application of Articles 16, 132, 134, 139 of the CAS of Ukraine conducted on the principle of chronology shows that courts recover legal fees only if they are proved in the manner prescribed by law.
Date, case number and name of the court | Motivation / decision |
September 20, 2018 826/2489/18 KYIV DISTRICT ADMINISTRATIVE COURT | Part seven of Article 139 of the Code of Administrative Procedure of Ukraine stipulates that the amount of costs that a party has paid or must pay in connection with the case is established by the court on the basis of evidence submitted by the parties (contracts, invoices, etc.). However, as can be seen from the statement of claim and the documents attached to it, the plaintiff did not provide the court with evidence to prove the payment of legal aid. Thus, the plaintiff provided the court only a copy of the agreement on legal assistance from 01.02.2018 №2018 / 04 and a copy of the act of acceptance-transfer under the agreement on legal assistance from 01.02.2018 №2018 / 04, which states that the amount to be paid for the services provided by the lawyer amount to UAH 3,524.00. However, no receipts, payment orders, copies of invoices or other evidence to confirm payment by the plaintiff for the services of a lawyer in the amount of UAH 3,524.00 were provided to the court. In view of the above, the court concludes that the plaintiff's request for reimbursement of legal aid costs is unfounded and not supported by adequate evidence. |
September 19, 2018 826/5401/18 KYIV ADMINISTRATIVE COURT OF APPEAL | In addition, the case file, namely the agreement on the provision of legal (legal) assistance from 12.02.2018 № 50 / jur /T.1 a.s.23-24 /, the order to provide legal assistance from 02.04.2018 series KV № 291814 /T.1 a.s.25 /, the act on the provision of legal (legal) assistance № 1 /T.1 a.s.26 / and cash disbursement order dated 02.04.2018 /T.1 а.с.27 / confirmed by the plaintiff incurring costs for legal assistance in the total amount of 2000.00 UAH., consisting of the fee of lawyer Weiner OL for preparation for consideration of the case in court: preparation of a statement of claim, collection of evidence in the case, which will be considered in court, meets the principle of proportionality, defined in Part 5 of Art. 134 CAS of Ukraine , and in accordance with this article CAS of Ukraine are subject to recovery in favor of the plaintiff for account of budget allocations of the defendant. |
September 19, 2018 826/13870/17 KYIV ADMINISTRATIVE COURT OF APPEAL | To collect from the budget allocations of the Main Department of the State Fiscal Service in Kyiv in favor of the limited liability company "Grand Prix-1" (USREOU code 25265337, p / r 2600326331, in the bank "PJSC Ukrgasbank", MFO 320478, 010001, Kyiv , Khreschatyk Street, 15/4) costs of legal aid in the amount of UAH 8,100. |
September 12, 2018 810/4749/15 SUPREME COURT | Considering that based on the results of the case by the court of cassation the cassation appeal of the Kyiv-Sviatoshynskyi joint state tax inspection of the Main Department of the State Fiscal Service in Kyiv region was partially satisfied, the panel of judges considers that the plaintiff's application for distribution of court costs review of the case in the court of cassation in part of the costs of legal aid should be satisfied in the following part: 25 973 548 UAH. - the price of the claim in part of the satisfied claims by the courts of first and appellate instances, UAH 25,966,951.40. - the price of the claim in the part of the claims in respect of which the decisions of the courts of first and appellate instance were left unchanged, UAH 6596.62. - part of the claims in respect of which the decisions of the courts of previous instances were annulled, and the case was sent for retrial to the court of first instance, UAH 39,361.50. - the costs of professional legal assistance of lawyers and their assistants in the court of cassation, which is distributed by the court, therefore subject to reimbursement of the plaintiff's costs of legal assistance in the amount of UAH 39,351.50. (UAH 25,966,951.40 x UAH 39,361.50) / UAH 25,973,548. To collect in favor of the Limited Liability Company "Tyten Machinery Ukraine" at the expense of budget allocations of the Kyiv-Sviatoshynsky joint state tax inspection of the Main Department of the SFS in Kyiv region UAH 39,351.50. (thirty-nine thousand three hundred and fifty-one hryvnia 50 kopecks) court costs for professional legal assistance. |
September 12, 2018 826/10658/17 KYIV ADMINISTRATIVE COURT OF APPEAL | To collect from the budget allocations of the Main Department of the SFS in Poltava region, the State Fiscal Service of Ukraine in favor of the Limited Liability Company "Rost Agro" (USREOU code 31000550) costs of paying court fees for filing an administrative lawsuit in the District Administrative Court of Kyiv and appeal to Kyiv Administrative Court of Appeal in the total amount of UAH 2,382,963.00, as well as court costs related to the case in the total amount of UAH 20,000.00. |
September 12, 2018 826/838/16 KYIV ADMINISTRATIVE COURT | Analyzing the circumstances of the case and the rules of current legislation, the panel of judges considers that the court of first instance unreasonably refused to meet the requirements of PERSON_5 in terms of recovery from local appropriations of the Kyiv City State Administration in favor of PERSON_5 costs associated with the case (for legal assistance), which amount to UAH 4409.60, and therefore the court decision is subject to cancellation in this part with the adoption of a new decision. To satisfy the appeal PERSON_5. Decision of the District Administrative Court of Kyiv from April 30, 2018 in part refusal to satisfy claims for recovery of local allocations of the Kyiv City State Administration in favor of PERSON_5 costs associated with the case (for legal assistance), amounting to 4409.60 UAH. (four thousand four hundred and nine hryvnias 60 kopecks.) cancel and take a new decision in this part, which will satisfy the administrative claim. To recover from the budget allocations of the Kyiv City State Administration in favor of PERSON_5 costs associated with the case (for legal assistance), which amount to 4409.60 UAH. (four thousand four hundred and nine hryvnias 60 kopecks.). In the other part of the decision of the District Administrative Court of Kyiv of April 30, 2018 to leave unchanged. To recover from the budget allocations of the Kyiv City State Administration in favor of PERSON_5 costs associated with the case (for legal assistance) in the amount of 5 600 UAH. 00 kopecks, in accordance with the contract № 16 / 05-2 of May 16, 2018. The decision comes into force from the date of its adoption and can be appealed by filing a cassation appeal directly to the Supreme Court in the manner and within the time limits specified in Articles 328-329 of the Criminal Procedure Code of Ukraine . |
September 4, 2018 825/1933/18 KYIV ADMINISTRATIVE COURT OF APPEAL | In case of non-compliance with the requirements of part five of this article, the court may, at the request of the other party, reduce the amount of legal aid costs to be shared between the parties. The burden of proving the disproportionate costs rests with the party requesting a reduction in the legal fees to be shared between the parties. Thus, to confirm the costs incurred, the plaintiff submitted to the court: the contract for legal services from 11 April 2018, concluded between PERSON_3 and lawyer PERSON_1, additional agreement to the Contract from 16.04.2018, Act of acceptance - transfer of work performed with the calculation of time spent to confirm the amount of payment for the services of a lawyer under the Agreement on the provision of legal assistance from 11.04.2018 from 16.04.2018, receipt for the transfer of cash RC_SNJ005EGL2X15I in the amount of 3000 UAH. In view of the above, the panel of judges considers it necessary to satisfy the claim PERSON_5 recovery at the expense of budget allocations of the Ministry of Defense of Ukraine costs for legal assistance in the amount of 3000 UAH. |
September 4, 2018 826/16219/16 KYIV ADMINISTRATIVE COURT OF APPEAL | To confirm the costs of legal assistance lawyer PERSON_3 provided a contract for legal services, receipts from 07.10.2016 and 13.10.2016, an act of acceptance of legal services with the calculation of services provided from 17.10.2016, a certificate of the right to practice law. Therefore, since the case file contains documentary evidence of the costs incurred by the plaintiff for legal assistance, the court of first instance came to the correct conclusion to recover from the defendant the costs incurred by the plaintiff for professional legal assistance in the amount of UAH 3,000.00. |
August 30, 2018 826/223/17 KYIV ADMINISTRATIVE COURT OF APPEAL | In pursuance of the Agreement on the provision of legal (legal) assistance from June 15, 2018 (concluded between the plaintiff, PERSON_2, and lawyer Rulyakov Vitaly Vladimirovich), provided legal assistance, as evidenced by the Act of acceptance-transfer of services from 04 July 2018. Payment under the Agreement on the provision of legal (legal) assistance dated June 15, 2018 was made by the plaintiff in the amount of UAH 7,000, which is confirmed by receipts №49V8I7RB35KC74EG and №88JGNEAOIQQ617D7 dated July 4, 2018. According to Part 6 of Art. 139 of the Code of Administrative Procedure of Ukraine , if the court of appeal or cassation, without returning the administrative case for retrial, changes the court decision or adopts a new one, it accordingly changes the distribution of court costs. In view of the above, the panel of judges concluded that the court costs incurred in the form of paid court fees and legal aid costs are reimbursed from the budget allocations of the State Tax Inspectorate in the Obolon district of the Main Department of the SFS in Kyiv. Collect at the expense of budget allocations of the State Tax Inspectorate in the Obolonsky district of the Main Department of the SFS in Kyiv (USREOU: 39468697, location: 04213, Kyiv, Heroes of Stalingrad Ave., 58) in favor of PERSON_2 (identification code1, place NUMBER residence: ADDRESS_1) court costs in the form of: paid court fees in the amount of 2 067 UAH. (two thousand sixty seven) UAH, paid in accordance with the receipt №55044 dated June 19, 2018 and the costs of legal assistance, according to the Agreement on the provision of legal (legal) assistance dated June 15, 2018, in the amount of 7000 (seven thousand) UAH ., according to receipts №49V8I7RB35KC74EG and №88JGNEAOIQQ617D7 dated July 4, 2018. |
Conclusion
1. In case the court disregards the issue of distribution of court costs in part of the costs of legal aid, an application for an additional decision shall be submitted. Such an application may be filed in any court.
2. The court which may give an additional judgment on costs shall be the court which has given the judgment. At the same time, the court of appeal or cassation which did not change and did not make a new decision, and therefore was not a court that can decide on the reimbursement of the plaintiff the amount of court costs for professional legal (legal) assistance in connection with the court of appeal or cassation instance.
This position is controversial, because not changing or adopting a new decision does not exempt a citizen from court costs. Court costs are paid for the process and are reimbursed to the person in whose favor the court decision was made.
3. Pursuant to part one of Article 139 of the Code of Administrative Procedure of Ukraine, in satisfying the claim of a party who is not a subject of power, all court costs to be reimbursed or paid in accordance with the provisions of this Code shall be recovered from the budget allocations of the subject of power. authority who acted as a defendant in the case, or if the defendant in the case was his official or official.
4. According to the first paragraph of the third part of Article 134 of the Code of Administrative Procedure of Ukraine, the amount of legal fees for a lawyer, among other things, is a lawyer's fee for representation in court and other legal assistance related to the case, including preparation for its consideration, collection of evidence etc., which are determined in accordance with the terms of the contract for legal assistance and on the basis of evidence of the amount of services provided and work performed and their value, paid or payable by the relevant party or a third party. To determine the amount of legal aid costs and to allocate court costs, the party to the case shall submit a detailed description of the work (services provided) performed by the lawyer and the costs incurred by him to provide legal aid.
5. According to paragraph 4 of the first part of Article 1 of the Law of Ukraine "On Advocacy and Advocacy" agreement on legal assistance - an agreement under which one party (lawyer, law firm, bar association) undertakes to protect, represent or provide other types of legal assistance to the other party (client) on the terms and in the manner specified in the contract, and the client undertakes to pay for legal assistance and the actual costs necessary to perform the contract. The agreement on the provision of legal assistance is concluded for such types of legal activity as defense, representation and other types of legal activity.
Representation - a type of advocacy, which is to ensure the implementation of the rights and responsibilities of the client in civil, commercial, administrative and constitutional proceedings, in other government agencies, before individuals and legal entities, the rights and responsibilities of the victim in administrative proceedings. offense, as well as the rights and obligations of the victim, civil plaintiff, civil defendant in criminal proceedings (paragraph 9 of the first article 1 of the Law of Ukraine "On Advocacy and Advocacy" ).
Other types of legal assistance - types of legal activities to provide legal information, advice and clarification on legal issues, legal support of the client, preparation of applications, complaints, procedural and other legal documents aimed at ensuring the rights, freedoms and legitimate interests of the client , prevention of their violations, as well as to facilitate their recovery in case of violation (paragraph 6 of the first part of Article 1 of the Law of Ukraine "On Advocacy and Advocacy" ).
Article 19 of the Law of Ukraine "On Advocacy and Advocacy" defines, in particular, such types of advocacy as the provision of legal information, advice and clarification on legal issues, legal support of legal entities and individuals, public authorities, local governments, the state ; preparation of applications, complaints, procedural and other legal documents; representation of the interests of individuals and legal entities in courts during civil, commercial, administrative and constitutional proceedings, as well as in other state bodies, before individuals and legal entities.
According to Article 30 of the Law of Ukraine "On Advocacy and Advocacy", the fee is a form of remuneration of a lawyer for the protection, representation and provision of other types of legal assistance to the client. The procedure for calculating the fee (fixed amount, hourly rate), the grounds for changing the amount of the fee, the procedure for its payment, the terms of return, etc. are determined in the contract for legal assistance. When determining the amount of the fee, the complexity of the case, the qualifications and experience of the lawyer, the financial condition of the client and other significant circumstances are taken into account. The fee should be reasonable and take into account the time spent by the lawyer.
6. The amount of costs for the services of a lawyer must be commensurate with:
1) the complexity of the case and the work performed by the lawyer (services provided);
2) the time spent by the lawyer to perform the relevant work (provision of services); 3) the volume of services provided by the lawyer and work performed;
4) the price of the claim and (or) the significance of the case for the party, including the impact of resolving the case on the party's reputation or public interest in the case (part 5 of Article 134 of the Code of Administrative Procedure of Ukraine ).
The proportionality of the costs must be proved by a lawyer in court.
7. The court may not reduce the cost of lawyer's services, in the absence of a request to reduce the cost of legal assistance filed by another party to the case (paragraph 6.7 of Article 134 of the Code of Administrative Procedure of Ukraine ). The court is not empowered to assume the powers of a party to a case and to reduce the costs of legal aid on its own initiative. The burden of proving disproportionate costs rests with the party requesting a reduction in the legal fees to be shared between the parties. Therefore, a reduction in the cost of legal aid can take place only in the event of a dispute over legal aid and in the event that the party in the case proves its disproportion or unfoundedness.
8. The following documents shall be submitted to confirm the incurred court costs for legal aid:
Legal aid agreement or other agreement certifying a contractual relationship.
Invoices, invoices or other documents certifying the approval of the contract price, drawn up taking into account paragraph 4 of Part 5 of Art. 134 CAS of Ukraine, ie commensurate with the price of the claim and (or) the significance of the case for the party, including the impact of the decision on the reputation of the party or the public interest in the case.
Lease agreements for offices and other premises required for legal assistance, bank statements, printouts of public offers posted on websites or other publicly available resources, orders to establish groups of lawyers, publicly available ratings of lawyers (law firm, law firm, etc.), which certify the costs of a lawyer, his level of professionalism and form the cost of standard working hours. Regarding the standard time or other payment for the services of a lawyer, it is necessary to pay attention to the case law of the ECtHR, which states: "The court does not consider itself bound by internal rates and criteria, although it may take them as a model in the amount of fees existing in the States Parties, a single approach to the assessment of fees under Article 50 of the Convention does not seem justified ”(Tolstoy Miloslavsky, 77; Papamichaloppoulos et al, Cm. 50, 47) ».) Therefore, the payment for the services of a lawyer cannot be equated to average statistical or other general criteria and is individual for each lawyer.
Preliminary calculations, specifications, detailed descriptions of works and services, etc., certifying the complexity of the case and the required amount of work (services), the time required for a lawyer to perform the relevant work (services), in the case of hourly pay.
Acts of acceptance and transfer of works and services, certifying the fact of providing legal assistance, the amount of services provided by a lawyer and work performed.
Bank statements, checks, payment orders, receipts, etc., confirming the implementation of the relevant costs of legal assistance.
9. From the analysis of the provisions of Art. 134 CAS of Ukraine it is seen that the composition and amount of costs for professional legal assistance is subject to proof in court - a party wishing to reimburse court costs must prove and confirm the amount of claimed costs, and the other party may object to the disproportionate amount of such costs. The outcome and resolution of the case is directly related to the position, efforts and participation in the process of representing the interests of the parties to the contract. In this case, such services must be justified, ie the feasibility of such services and its impact on the final outcome of the case sought by the party, must be proved by the party in the process.
The services provided may be considered inappropriate by the courts if they duplicate each other, do not affect the course of the case and do not require special professional skills. Some types of services provided, such as preparation of a response to a cassation appeal and preparation for a court hearing, are, in the opinion of the court, similar actions during which the plaintiff's position on the disputed legal relationship is formed, refutation of the defendant's arguments, analysis of case law, explanations , etc.
This position of the court is justified in terms of making procedural decisions and committing procedural actions that may be complex. For example: preparation of a lawsuit includes analysis of available evidence, collection of other evidence in the case, analysis of the legal framework, analysis of the practice of the Supreme Court and the ECtHR (given that such practice is mandatory for lower courts), consultation and work in groups of lawyers in order to develop and select strategies and tactics for protecting the client, and as a final stage is to write the text of the statement of claim, the formation of applications, the collection of evidence. Therefore, the typing of the statement of claim and the preparation of the statement of claim should not be equated. The same applies to other procedural decisions and the commission of procedural actions.
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