Decisions of the Supreme Court that will be useful for lawyers: TOP-3

1. Does the lawyer have to pay EUV if his legal activity is suspended

This very issue was investigated by the Supreme Court as part of the panel of judges of the Cassation Administrative Court in the first case No. 520/6094/19 .

Thus, in this case, the Supreme Court agreed with the decisions of the courts of previous instances that the necessary conditions for a person to pay a single contribution to the mandatory state social insurance are the conduct of independent professional advocacy activities by such a person and the receipt of income from such activities.

The presence of a person's certificate of the right to practice law only certifies his right as a lawyer to carry out independent professional activities, but is not proof of direct practice of law and receiving income from such activities.

The Supreme Court noted that in accordance with Articles 31 and 32 of the Law of Ukraine "On Advocacy and Advocacy" dated July 5, 2012 No. 5076-VI, the right to engage in advocacy is suspended in the event that the lawyer submits an application to stop advocacy from the date of submission to the Regional Bar Council under the address of the workplace of the lawyer of the relevant application. During the period of suspension of the right to engage in advocacy, the advocate does not have the right to practice it.

Such a lawyer also cannot participate in the work of the self-government bodies of lawyers, except for cases when such a right is suspended in connection with the appointment of a person to a position in a state authority by the Congress of Lawyers of Ukraine. Information on the suspension of the right to practice law is entered in the Unified Register of Lawyers of Ukraine.

From the above provisions of Law No. 5076-VI, the courts summarized that the legal consequence of the suspension of the right to engage in advocacy is the impossibility of engaging in advocacy for a certain period of time, while the consequence of the termination of the right to engage in advocacy is the impossibility of its further exercise at all, in “therefore, the license to practice law is cancelled. In this way, the legislator distinguishes between the suspension and termination of the right to practice law.

The concepts of "suspension" and "termination" of advocacy activities have a different legal nature and, accordingly, are not identical due to the different procedural nature and features of application, in connection with which the courts came to the conclusion that the effect of the provisions of the Procedure for Accounting of Single Contribution Payers the mandatory state social insurance, approved by the order of the Ministry of Finance of Ukraine dated November 24, 2014 No. 1162, which regulates the specifics of the termination of independent professional activity with the corresponding obligations, does not extend to legal relationships in which the lawyer's activity was stopped, as he insists controlling body.

Assessing the arguments of the supervisory body regarding the fact that neither the PC of Ukraine nor Law No. 464-VI did not regulate the specifics of the payment of monetary obligations by a self-employed person in the event that he stops such activities, the courts proceeded from the fact that from the practice of the European Court of Human Rights , which was formed on the issue of the imperativeness of the rule on making a decision in favor of taxpayers in the event of ambiguity in the interpretation of the rights and/or obligations of the taxpayer ("Serkov v. Ukraine", application No. 39766/05, "Shchokin v. Ukraine", application no. 23759/03 and No. 37943/06), preference should be given to the most favorable interpretation of national legislation and decisions should be made in favor of the taxpayer.

The Supreme Court in its rulings dated November 5, 2018 in case No. 820/1538/17, dated November 27, 2019 (case No. 160/3114/19) and dated March 5, 2020 (case No. 824/509/19-а) examined the problems of the administration of Law No. 2464-VI of a single contribution when an individual is in employment at the same time and has the right to carry out independent professional activity, which the person does not actually carry out, and in his decisions noted that a person who carries out independent professional activity , in particular, a lawyer's, is considered a self-employed person and is obliged to pay a single contribution only on the condition that such a person is not an employee.

2. Expenses for the provided professional legal assistance in the case of confirmation of the scope of the services provided and the work performed and their value are subject to distribution according to the results of the case review, regardless of whether they have already been actually paid by the party/third party, or are yet to be paid.

This was emphasized by the Supreme Court as part of the panel of judges of the Cassation Economic Court in case No. 922/449/21 .

The circumstances of the case

By the additional decision of the economic court of the Kharkiv region dated April 27, 2021, in case No. 922/449/21, the application of the limited liability company "K" to recover the costs of professional legal assistance was satisfied. UAH 89,378.00 of expenses for professional legal assistance were collected from the public joint-stock company "C" in favor of the limited liability company "K".

Satisfying the application of the limited liability company "K" for the recovery of costs for professional legal assistance in the amount of UAH 89,378.00, the local commercial court, with which the appellate commercial court also agreed, concluded that the evidence (documents) provided for the said application as a whole, they confirm the provision of such services; the amount of expenses is proven and meets the criterion of the reasonable necessity of such expenses.

The decision of the Economic Court of the Kharkiv Region and the additional decision of the Economic Court of the Kharkiv Region dated April 27, 2021 in case No. 922/449/21 were left unchanged by the ruling of the Eastern Commercial Court of Appeal.

By the additional decision of the Eastern Commercial Court of Appeal dated 21.07.2021 in case No. 922/449/21, the application of the limited liability company "K" for the recovery of costs for professional legal assistance was satisfied. UAH 8,500.00 of expenses for professional legal assistance were collected from the public joint-stock company "Ts" in the person of the separate division of the Zmiyiv thermal power plant of the public joint-stock company "Centrenergo" in favor of the limited liability company "Kotloturboprom".

The position of the Supreme Court

While considering the case, the Supreme Court emphasized that the complainant's arguments that the claimant in the original claim did not properly prove the fact of payment of the lawyer's expenses related to the provision of legal aid (actual payment) are inadmissible, because according to the conclusions of the combined Chamber of Cassation of the commercial court as part of the Supreme Court, set out in the resolution dated 03.10.2019 in case No. 922/445/19, the amount of expenses for the payment of professional legal assistance of a lawyer is established and distributed by the court in accordance with the terms of the contract on the provision of legal assistance upon providing relevant evidence regarding the scope of services provided and the completed works and their cost, both already paid and that which is only payable (to be paid) by the relevant party or a third party. Therefore, the costs of the provided legal assistance in the case of confirmation of the scope of the services provided and the work performed and their cost are subject to distribution according to the results of the case review, regardless of whether they have already been actually paid by the party/third party, or are yet to be paid. At the same time, the joint chamber of the Commercial Court of Cassation as part of the Supreme Court, in its decision dated 03.10.2019 in case No. 922/445/19, departed from the conclusion regarding the application of the provisions of Article 126 of the Civil Procedure Code of Ukraine, set out in the decision of the Supreme Court dated 05.02.2019 in case no. 906/194/18, on the need to provide evidence confirming the actual expenditure by the participant of the case for professional legal assistance, in order to resolve the issue of distribution of court costs.

The Supreme Court notes that the courts of previous judicial instances, taking into account the cited practice of the Supreme Court regarding the reimbursement of expenses for professional legal assistance by the court, the criterion of reality and reasonableness of attorney's fees and the financial status of both parties, having examined all the evidence provided in their entirety to confirm the provision of such services, and also taking into account the lack of a written request of the defendant in the original claim to reduce the costs of paying legal aid, – reached a conclusion based on the law on the satisfaction of the application of the limited liability company "K" and the collection of costs for professional legal aid in its favor.

However, the additional decision of the court of first instance and the additional decision of the appellate court are subject to change in connection with the partial satisfaction of the cassation appeal, the change of court decisions in the relevant part and the new distribution of court costs, including the costs of professional legal assistance.

In view of the above, the decision of the Commercial Court of the Kharkiv region dated 04/13/2021 and the decision of the Eastern Court of Appeal dated 07/05/2021 regarding the recovery from the public joint-stock company "Ts" in the person of the separate subdivision of the Zmiyiv Thermal Electric Station of the public joint-stock company "Ts" 79,278.10 UAH – 3% per annum, UAH 136,967.92 – penalty, as well as the part of court fee collection subject to change.

The additional decision of the Commercial Court of the Kharkiv region dated 04/27/2021 and the additional decision of the Eastern Commercial Court of Appeal dated 07/21/2021 on the case are subject to change with the proportional distribution of costs for professional legal assistance.

Taking into account the circumstances of the case, the Supreme Court decided to collect UAH 89,074.95 of expenses for professional legal assistance in the court of first instance from the public joint-stock company "Central Committee in the person of the separate division of the Zmiiv thermal power plant of the public joint-stock company "C" in favor of the limited liability company "K" and UAH 8,471.18 of expenses for professional legal assistance in the court of appeal.

3. In a taxi to the court: the Supreme Court spoke about the reimbursement of the costs associated with the arrival to the court

In this case No. 766/7206/20 , the Supreme Court noted that when deciding on the issue of reimbursement of costs to a party related to coming to court, it is necessary to proceed from the specific circumstances of the case, taking into account the type of transport used by the person, as well as the documents submitted by him to confirm the implementation of these expenses.

The circumstances of the case

It is known that the plaintiff submitted to the Kherson Court of Appeal an application for the adoption of an additional decision, in which, referring to the fact that, when adopting the decision based on the results of the appellate review, the issue of distribution of court costs was not resolved by the appellate court, he asked the court to adopt an additional decision on the distribution of court costs, incurred in connection with the consideration of the case No. 766/7206/20, namely to collect from the budget allocations of the Kherson Border Guard in his favor the costs incurred related to the legal assistance of a lawyer during the consideration of the case, in the amount of UAH 10,000, transportation costs , related to the court appearance, in the amount of UAH 6,000, expenses for correspondence with the court and the defendant in the amount of UAH 174.80.

By an additional decision of the appeals court, the application for the adoption of an additional decision was partially satisfied, and legal costs for professional legal assistance and costs related to sending correspondence in the amount of UAH 3,388.20 were collected from the Kherson border detachment in the person of the housing and operation department of the security department in favor of the plaintiff .

In the cassation complaint, the appellant emphasized that the use of taxi services was forced due to the lack of direct bus connections between the city of Artsyz and the city of Kherson. In addition, when determining the dates and times of court hearings, the court of first instance did not take into account the distance between the settlement where the plaintiff lives and the court, and did not agree on the date and time of such court hearings.

Regarding the plaintiff's expenses for taxi services, the Supreme Court noted that in accordance with Article 138 of the Civil Code of Ukraine, the parties bear the expenses related to moving to another settlement of the parties and their representatives, as well as renting housing. The maximum amount of compensation for court-ordered expenses of the parties and their representatives related to court appearances is established by the Cabinet of Ministers of Ukraine.

The introduction by the legislator of the maximum amount (upper limit) of compensation under a court decision for the costs of the parties and their legal representatives, which are related to the appearance in court, is intended primarily to prevent the overestimation of the amount of these costs and to prevent the abuse of such a right.

The Supreme Court in its decision dated September 30, 2020 in case No. 379/1418/18 (proceedings No. 61-9124св20) indicated that when deciding the issue of reimbursement of costs to a party related to coming to court, it is necessary to proceed from the specific circumstances of the case, taking into account on the type of transport used by the person, as well as the documents submitted by him to confirm the realization of these expenses.

On the other hand, in the case under consideration, the impossibility of using public transport, except for taxis, for appearing in court, is not substantiated by the plaintiff with proper and admissible evidence.

Source