The overview of legal positions was prepared by the Higher School of Advocacy of the National Bar Association of Ukraine.
The amount of expenses for professional legal assistance meets the criterion of the reality of the services provided. services, the reasonableness of their size, the specific circumstances of the case, taking into account its complexity, the necessary procedural actions of the party
📌 Resolution of the Supreme Court composed of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated July 17, 2024 in case No. 369/12718/20
The fee is a form of remuneration for the 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 payment), the grounds for changing the amount of the fee, the procedure for its payment, the terms of return, etc. are determined in the agreement on the provision of legal assistance. When establishing the amount of the fee, the complexity of the case, the qualification and experience of the lawyer, the financial condition of the client and other significant circumstances are taken into account. The fee must be reasonable and take into account the time spent by the lawyer ( Article 30 of the Law No. 5076-VI “On the Bar and Legal Activities” ).
The amount of the fee is determined by agreement between the lawyer and the client. The lawyer has the right to determine the amount of the fee within reasonable limits, based on his own considerations. When setting the amount of the fee, the complexity of the case, the qualification, experience and workload of the lawyer and other circumstances may be taken into account. The amount of the fee agreed upon by the lawyer with the client and/or the person who concluded the contract in the interests of the client may be changed only by mutual agreement. In the event of special, complex instructions from the client or in the event of an increase in the time and volume of work of the lawyer for the actual execution of the instruction (preparation for execution), the amount of the fee may be increased by mutual agreement.
In accordance with Article 134 of the Code of Civil Procedure of Ukraine, 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 legal 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. A preliminary calculation of the amount of legal costs does not limit a party from proving a different actual amount of legal costs, which are subject to distribution between the parties based on the results of the case. 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.
When deciding the application of PERSON_2 for the adoption of an additional resolution on the recovery of costs for legal assistance provided by the latter in the court of appeal, the court of appeal was mistakenly guided by the fact that the application submitted by her did not contain an announcement of a success fee and during the consideration of the case, the defendant did not indicate the justification for the impossibility of submitting evidence of her incurring this part of the court costs.
At the same time, the appellate court did not take into account the principle of the reality of the legal services provided, not paying attention to the receipt submitted by the defendant’s representative for payment of legal services in the amount of UAH 14,000 (a. p. 173, vol. 3).
Therefore, the appellate court, without taking into account the requirements of Articles 134 , 141 , 270 of the CPC of Ukraine , groundlessly refused to satisfy PERSON_2’s application for the adoption of an additional resolution on the recovery of costs for legal assistance provided to the latter in the appellate court.
Taking into account the nature of the legal relationship in this case, having analyzed the volume of services provided to PERSON_2, based on the principles of civil law regarding reasonableness and fairness, the panel of judges believes that compensation in favor of PERSON_2 is subject to the costs of legal assistance provided to her in the court of appeal, in the amount of UAH 14,000.
The specified amount of expenses for professional legal assistance meets the criteria of the reality of the legal services provided, the reasonableness of their amount, the specific circumstances of the case, taking into account its complexity, and the necessary procedural actions of the party.
🔗 Source: https://reyestr.court.gov.ua/Review/120654267
The obligations that have arisen between the lawyer and the client, in particular in the case of their conclusion of a contract that provides for the payment of a “success fee” to the lawyer, in the context of resolving the issue of the distribution of legal costs, are not binding on the court.
📌 Resolution of the Supreme Court composed of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated January 11, 2024 in case No. 235/8612/19
The court is not bound by obligations that have arisen between a lawyer and a client, in particular in the case of a contract between them providing for the payment of a “success fee” to the lawyer, in the context of resolving the issue of the allocation of legal costs. In resolving the latter, the court must assess the costs that must be compensated at the expense of the other party, taking into account both whether they were actually incurred and whether they were necessary.
Following the results of the case, the costs of legal assistance of a lawyer shall be divided between the parties together with other court costs. For the purposes of dividing court costs: 1) the amount of the costs of legal assistance of a lawyer, including the lawyer’s fee for representation in court and other legal assistance related to the case, including preparation for its consideration, collection of evidence, etc., as well as the cost of the services of a lawyer’s assistant shall be determined in accordance with the terms of the contract for the provision of legal assistance and on the basis of relevant evidence regarding the volume of services provided and work performed and their cost, which has been paid or is to be paid by the relevant party or a third party; 2) the amount of the amount to be paid as compensation for the lawyer’s costs necessary for the provision of legal assistance shall be established in accordance with the terms of the contract for the provision of legal assistance on the basis of relevant evidence confirming the incurrence of the relevant costs.
To determine the amount of legal aid costs for the purpose of distributing court costs, a party to the case submits a detailed description of the work (services provided) performed by the lawyer and the expenses incurred by him necessary for the provision of legal aid.
Analyzing the reality (reality and necessity), as well as the reasonableness of the amount of legal aid expenses provided to the defendants at the stage of cassation review of the case, the panel of judges concluded that there were no grounds for recovering legal aid expenses in the amount of UAH 2,000.00 in favor of each of the defendants (legal analysis of the cassation appeal and the documents attached to it), since the defendants’ representative filed a response to the cassation appeal before receiving a copy of the cassation appeal of PERSON_1.
In addition, legal aid costs in the amount of UAH 3,000.00 (participation in the court session to consider the cassation appeal) are not subject to reimbursement, since the case was considered by the Supreme Court in written proceedings, without summoning the parties, and no court sessions were held in the case.
🔗 Source: https://reyestr.court.gov.ua/Review/116358462
Trips to court, waiting for the issuance of a writ of execution, preparation of a package of documents for a response to the shipment, a trip to Ukrposhta, communication with the customer are not types of legal assistance, are organizational in nature and are components of the preparation of a response to a cassation appeal.
📌 Additional resolution of the Supreme Court composed of the panel of judges of the Third Judicial Chamber of the Civil Court of Cassation dated May 30, 2024 in case No. 759/6109/21
The Supreme Court agrees with the arguments in PERSON_2’s application for a reduction in the costs of paying for professional legal assistance in view of the following.
When determining the amount to be paid as compensation for the attorney’s fee by the other party, the courts should proceed from the amount and/or the procedure for calculating such expenses established in the contract itself, which is consistent with Article 30 of Law No. 5076-VI, taking into account the provisions of the legislation on the criteria for determining the amount of legal aid expenses.
According to parts one and two of Article 141 of the Code of Civil Procedure of Ukraine, the court fee is imposed on the parties in proportion to the amount of the satisfied claims. Other court costs associated with the consideration of the case are imposed: 1) in case of satisfaction of the claim – on the defendant; 2) in case of rejection of the claim – on the plaintiff; 3) in case of partial satisfaction of the claim – on both parties in proportion to the amount of the satisfied claims.
Following the review of this case, by the Supreme Court’s resolution of March 18, 2024, the cassation appeal of PERSON_2, filed by lawyer Oliynik I. V., was dismissed. The decision of the Svyatoshynskyi District Court of Kyiv dated December 6, 2022 and the resolution of the Kyiv Court of Appeal dated May 4, 2023 were left unchanged.
In view of the above, taking into account the nature of the legal relations in this case, in particular, the dismissal of the cassation appeal, the volume of services provided to the applicant, the motion of PERSON_2 to reduce the amount of expenses for professional legal assistance, in particular, communication with the contact center of the Civil Court of Cassation, trips to the court, waiting for the issuance of the writ of execution, preparation of a package of documents for the response to the dispatch, a trip to Ukrposhta, communication with the customer, are not types of legal assistance, are of an organizational nature and are components of the preparation of the response to the cassation appeal.
Taking into account the principle of proportionality, the Supreme Court concluded that the costs of professional legal assistance incurred in the court of cassation in the amount of UAH 30,000.00 are subject to recovery in favor of the plaintiff, which will meet the criteria of the reality of the legal services provided, the reasonableness of their amount, compliance with the specific circumstances of the case, taking into account its complexity and the necessity of procedural actions.
🔗 Source: https://reyestr.court.gov.ua/Review/119493695
A request for recovery of legal aid costs, indicating the approximate amount of costs incurred, citing the fact that the case is not yet complete and it is impossible to predict all costs at the stage of filing a cassation appeal with the court
📌 Additional resolution of the Supreme Court composed of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation dated August 21, 2024 in case No. 759/6146/23
It appears from the case materials that in the cassation appeal of PERSON_1, a claim was made for the recovery of legal aid costs, indicating the approximate amount of costs incurred, citing the fact that the consideration of the case has not been completed and it is not possible to predict all costs at the stage of filing a cassation appeal with the court.
The case materials also establish that in confirmation of the court costs incurred by PERSON_1 for professional legal assistance, a contract for the provision of legal (legal) assistance No. b/n dated March 13, 2023; order No. 1375518 dated January 16, 2024; invoice for payment No. 01 dated January 8, 2024; payment instruction dated January 10, 2024; invoice for payment No. 129 dated June 25, 2024; payment instruction dated June 25, 2024.
On August 9, 2024, the defendants filed objections to PERSON_1’s motion regarding the distribution of court costs.
Considering that the cassation appeal of PERSON_1, represented by attorney Babenko Yu. S., against the resolution of the Kyiv Court of Appeal dated December 6, 2023, was satisfied, taking into account the objections provided by the defendants, the panel of judges concluded that there were grounds for partially satisfying the application for an additional decision in the case and recovering from PERSON_2 in favor of PERSON_1 the costs of legal assistance incurred by him at the stage of cassation review of the case, in the amount of UAH 4,000, since such an amount of costs for professional legal assistance will meet the criterion of the reality of the legal services provided, the validity, and the reasonableness of their amount, taking into account the specific circumstances of the case, its complexity, and the necessary procedural actions of the party.