When deciding the distribution of court costs, the court does not take into account when the expert opinion was ordered and the expert’s opinion was obtained (before or after the plaintiff filed a claim with the court), but whether these costs are directly related to the consideration of the case.
The Grand Chamber of the Supreme Court drew attention to this in the decision dated November 22, 2023 in case No. 712/4126/22.
Senior judges reminded that one of the main principles of civil proceedings is the reimbursement of court costs of the party in whose favor the court decision was made. Its implementation is aimed at providing a person with the opportunity to effectively defend his rights in court, to effectively defend himself in the event of an unfounded lawsuit against him, as well as to encourage the parties to settle the dispute before the court.
But, despite the desire to reduce the number of disputes, there is only an upward trend with such appeals. In this case, the parties should take into account the practice of the Supreme Court.
Article 134 of the Civil Code stipulates the obligation of the parties to determine the amount of court costs in advance. In particular, together with the first statement on the merits of the dispute, each party submits to the court a preliminary (approximate) calculation of the amount of court costs that it has incurred and expects to incur in connection with the consideration of the case. If the party does not submit a preliminary calculation of the amount of court costs, the court may refuse to reimburse it for the relevant court costs, with the exception of the amount of the court fee paid by it.
The court can pre-determine the amount of court costs (except the costs of professional legal assistance) related to the consideration of the case or a certain procedural action. Such a pre-determined amount by the court does not limit the court in the final determination of the amount of court costs to be distributed between the parties based on the results of the case.
The amount of expenses that the party has paid or has to pay in connection with the consideration of the case is established by the court on the basis of the evidence submitted by the parties (contracts, invoices, etc.). Such evidence shall be submitted before the end of the court debates in the case or within five days after the court’s decision, provided that before the end of the court debates in the case the party has made a corresponding statement. If relevant evidence is not submitted within the prescribed period, such an application remains without consideration.
Court costs related to the consideration of the case shall be borne by: 1) in case of satisfaction of the claim – to the defendant; 2) in case of rejection of the claim – to the plaintiff; 3) in case of partial satisfaction of the claim – to both parties in proportion to the size of the satisfied claims. (Article 141 of the Civil Code).
Art. 133 of the Civil Procedure Code specifies that court costs consist of the court fee and expenses related to the consideration of the case. The latter include those related to providing evidence, taking procedural actions necessary for the consideration of the case. And according to Art. 106 of the Civil Procedure Code, a party to the case has the right to submit to the court an expert’s opinion drawn up on his order. An expert who has drawn up an opinion at the request of a party to the case has the same rights and obligations as an expert who carries out an examination on the basis of a court order.
The basis for conducting a forensic examination is a relevant court decision or a decision of a pre-trial investigation body, or a contract with an expert or an expert institution – if the examination is conducted on the order of other persons (Article 7-1 of the Law “On Judicial Examination”).
Procedural legislation does not establish restrictions on reimbursement of court fees or expenses for professional legal assistance incurred before the opening of proceedings in the case, as directly related to the consideration of the case.
Under such circumstances, there are no obstacles to reimbursing the party in whose favor the court decision was made, the costs of drawing up an expert opinion, prepared and received at the request of a party in a case before the opening of proceedings in such a case, provided that it meets the requirements of Art. 101 CAS, Art. 98 of the Code of Civil Procedure, Art. 102 of the Code of Criminal Procedure, directly related to the consideration of the case and if the court took into account this expert’s opinion as evidence.
The Grand Chamber of the Supreme Court separately noted that the refusal to reimburse the court costs for conducting an expert examination to the party in whose favor the court decision was passed (especially if the court took into account the relevant opinion of the expert as evidence) is inconsistent with the principles of reasonableness, good faith, justice and legal certainty, and also does not ensure the predictability of the application of procedural norms, therefore, it does not correspond to the principle of the rule of law.
Therefore, an expert’s opinion can be prepared both on the basis of a court order on the appointment of an expert opinion, and on the order of a party to the case.
Reimbursement of expenses for conducting an examination is not limited to the case of its appointment and conduct after the opening of proceedings in the case.
If a party to the case submits to the court an expert’s opinion drawn up on his order, such opinion must state that it was prepared for submission to the court and that the expert is aware of criminal liability for a knowingly false opinion. In particular, the other party can submit a statement to the court about the existence of grounds for impeachment of an expert who prepared an opinion on the order of another person, and in the event that the court recognizes the existence of such grounds, such an opinion shall not be accepted by the court for consideration (Article 101 of the Civil Procedure Code, Article 98 of the Code of Criminal Procedure, Article 102 of the Code of Criminal Procedure).
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Valery Shkvarko
Secretary of the NAAU Committee on Civil Law and Procedure