On Practical Aspects of Drafting a Statement of Claim in Civil Procedure shared by lawyer, lecturer, and founder of the ‘Young Lawyer School’ project, mentor of lawyers Tetiana Lezhuk during a professional development event for lawyers held at the National University of State Tax Service of Ukraine.
The lecturer thoroughly analyzed with the participants the practical aspects of drafting a statement of claim in civil procedure, namely:
- 1. Requirements for a claim under the Civil Procedure Code.
- 2. Common mistakes in drafting a claim.
- 3. How to choose a defense strategy?
- 4. Rules for drafting a statement of claim that the court may satisfy.
- 5. Changing the subject and grounds of the claim.
- 6. Increasing/decreasing the price of the claim.
- 7. How to save 20% on court fees.
Within the characterization of a statement of claim in civil procedure, the focus is on the following:
1. Requirements for a claim under the Civil Procedure Code:
- Name of the court of first instance to which the claim is submitted;
- Full name (for legal entities) or name (surname, first name, and patronymic) (for individuals) of the parties and other participants in the case, their location (for legal entities) or place of residence or stay (for individuals), postal code, identification code of a legal entity in the Unified State Register of Enterprises and Organizations of Ukraine (for legal entities registered under the legislation of Ukraine), as well as the registration number of the taxpayer identification card (for individuals) if available or passport number and series for individuals who are citizens of Ukraine (if such information is known to the plaintiff), known contact numbers and email addresses, information about the presence or absence of an electronic account;
- Indication of the price of the claim if the claim is subject to monetary evaluation; a reasoned calculation of the amounts claimed or contested;
- Content of the claim requirements: the method(s) of protecting rights or interests provided by law or contract, or another method(s) of protecting rights and interests that do not contradict the law and which the plaintiff asks the court to determine in the decision; if the claim is filed against several defendants – with the list of claim requirements regarding each of them;
- Statement of circumstances justifying the plaintiff’s claims; indication of evidence supporting the stated circumstances;
- Information on the measures taken for pre-trial settlement of the dispute, if any were conducted, including if the law provides for a mandatory pre-trial dispute resolution procedure;
- Information on taking measures to secure evidence or the claim before filing a statement of claim, if such were taken;
- List of documents and other evidence attached to the claim; indication of evidence that cannot be submitted together with the statement of claim (if available); indication of the presence of originals of written or electronic evidence by the plaintiff or another person, copies of which are attached to the claim;
- Preliminary (approximate) calculation of the amount of court costs incurred by the plaintiff and expected to be incurred in connection with the case consideration;
- Confirmation by the plaintiff that no other claim (claims) has been filed against the same defendant(s) with the same subject and on the same grounds.
2. Common mistakes in drafting a claim
Mistakes in the content of a statement of claim:
- Incorrectly chosen defense strategy;
- Chaotic presentation of circumstances;
- Lack of necessary evidence;
- Missing statute of limitations for the claim;
- Failure to submit a statement according to part 8 of article 141 of the Civil Procedure Code in case you will submit evidence of legal expenses after a decision in your favor is made;
- Lack of developed counter-strategy;
- Lack of agreed legal position with the client(if necessary).
The plaintiff is obliged to attach to the statement of claim all available evidence confirming the circumstances on which the claim requirements are based (if written or electronic evidence is submitted, the plaintiff may attach copies of the relevant evidence to the statement of claim).
When submitting a statement of claim and accompanying documents to the court in electronic form through the plaintiff’s electronic account, the plaintiff is obliged to attach to the statement of claim evidence of sending copies of the documents submitted to the court to other participants in the case, taking into account the provisions of article 43 of the Civil Procedure Code of Ukraine.
3. How to choose a defense strategy?
Incorrectly chosen defense strategy can lead to the refusal to accept the statement of claim.
Defense strategies applied by the court are provided for in article 5 of the Civil Procedure Code of Ukraine:
In administering justice, the court protects the rights, freedoms, and interests of individuals, the rights and interests of legal entities, state and public interests in the manner prescribed by law or contract.
In cases where the law or contract does not define an effective method of protecting violated, unrecognized, or disputed rights, freedoms, or interests of a person who has applied to the court, the court, based on the claim requirements of such person stated in the claim, may determine in its decision a defense strategy that does not contradict the law.
4. Rules for drafting a statement of claim that the court may satisfy
- Rules for separating and combining claim requirements (resolution of the Higher Specialized Court of Ukraine for Civil and Criminal Cases dated August 18, 2023, in case No. 910/21280/21).
- If a statement, statement of claim, or complaint is submitted to the court in paper form, sending its copy to other participants in the case in electronic form does not meet the requirements of the Civil Procedure Code of Ukraine (resolution of the Cassation Administrative Court of the Supreme Court dated October 6, 2021, in case No. 761/14537/15-ц (61-10499св21)).
- The procedural consequence of refusing to accept the claim, a request to change the subject or grounds of the claim is the return of such a claim, which may be appealed in the appellate procedure in accordance with article 353 of the Civil Procedure Code of Ukraine (resolution of the Cassation Administrative Court of the Supreme Court in case No. 492/1529/19 dated January 25, 2023).
- Upon receipt of a request (petition) for ‘supplementation’ or ‘clarification’ of claim requirements by the plaintiff, the court, guided by its content, as well as the content of the previously submitted statement of claim and the specific circumstances of the case, should consider it either as the submission of another (additional) claim, or as an increase or decrease in the amount of claim requirements, or as the consolidation of claim requirements, or as a change in the subject or grounds of the claim (resolution of the Cassation Administrative Court of the Supreme Court in case No. 234/11607/20 dated January 2, 2022).
- A claim in procedural terms is an appeal to the court with a demand to protect one’s rights and interests, consisting of two elements: the subject and grounds of the claim. The subject of the claim is a specific material-legal claim of the plaintiff against the defendant, for which the plaintiff requests the court to make a decision. The grounds of the claim are the circumstances on which the plaintiff justifies his claims for the protection of the right and interest protected by law. Thus, changing the subject of the claim means changing the claim with which the plaintiff addressed the defendant, and changing the grounds of the claim is a change in the circumstances on which the plaintiff’s claim is based (resolution of the Cassation Administrative Court of the Supreme Court in case No. 640/19107/20 dated July 13, 2023).
- Combining in one statement of claim a requirement that is subject to consideration in the order of claim proceedings and a requirement that is not subject to consideration in the order of claim proceedings is not a reason for applying the provisions of the sixth part of article 188 of the Civil Procedure Code of Ukraine regarding the separation of claim requirements (resolution of the Cassation Administrative Court of the Supreme Court in case No. 761/22635/21 dated September 14, 2022).
- When two or more non-property claims are combined in one statement of claim, the court fee is paid for each non-property claim. When interpreting the term ‘claim,’ the subjective composition of legal relations (the number of co-defendants) should also be taken into account. The provisions of the Civil Procedure Code of Ukraine, the Law of Ukraine ‘On Court Fees’ do not contain norms that would allow concluding that the legislator intends to establish more favorable consequences in the form of a reduced court fee for cases where the plaintiff combines claims against several defendants in one claim. Therefore, even if homogeneous non-property claims related to each other by the same basis of origin and submitted evidence are presented, the court fee for each defendant should be determined separately (resolution of the Cassation Administrative Court of the Supreme Court in case No. 234/11607/20 dated January 2, 2022).
5. Changing the Subject and Grounds of the Claim
In addition to the rights and obligations specified in Article 43 of the Civil Procedure Code of Ukraine:
1) the plaintiff has the right to withdraw the claim (all or part of the claim requirements), the defendant has the right to recognize the claim (all or part of the claim requirements) at any stage of the judicial process;
2) the plaintiff has the right to increase or decrease the amount of claim requirements before the end of the preparatory meeting or before the start of the first court session if the case is considered in the order of simplified claim proceedings;
3) the defendant has the right to file a counterclaim within the deadlines established by this Code.
Before the end of the preparatory meeting, the plaintiff has the right to change the subject or grounds of the claim by submitting a written statement. In a case considered under the rules of simplified claim proceedings, changing the subject or grounds of the claim is allowed no later than five days before the start of the first court session in the case.
In the event of a case being sent for a new review to the court of first instance, changes in the subject or grounds of the claim are not allowed, except in cases defined by this article.
Changing the subject or grounds of the claim in a new review of the case is allowed within the deadlines established by the third part of this article, only if necessary to protect the plaintiff’s rights due to a change in the factual circumstances of the case that occurred after the end of the preparatory meeting, or if the case was considered under the rules of simplified claim proceedings – after the start of the first court session in the case of the initial consideration of the case.
6. Increasing/Decreasing the Price of the Claim
In accordance with Article 176 of the Civil Procedure Code of Ukraine, the price of the claim is determined as follows:
1) in claims for the recovery of money – by the amount to be recovered or the contested amount under an enforcement or other document under which recovery is made in an undisputed (non-acceptance) procedure;
2) in claims for the recognition of ownership rights to property or its recovery – by the value of the property;
3) in claims for alimony – by the total amount of payments, but not more than for six months;
4) in claims for term payments and issues – by the total amount of payments or issues, but not more than for three years;
5) in claims for non-term or lifetime payments and issues – by the total amount of payments or issues for three years;
6) in claims for reducing or increasing payments or issues – by the amount by which payments or issues are reduced or increased, but not more than for one year;
7) in claims for the termination of payments or issues – by the total amount of payments or issues remaining, but not more than for one year;
8) in claims for the termination of a lease (rental) agreement or a lease (rental) agreement for housing – by the total amount of payments for the use of property or housing for the remaining term of the agreement, but not more than for three years;
9) in claims for ownership rights to immovable property belonging to individuals on the right of private property – by the actual value of the immovable property, and for immovable property belonging to legal entities, not less than its book value;
10) in claims consisting of several independent claims – by the total amount of all claims.
If the price determined by the plaintiff obviously does not correspond to the actual value of the disputed property or it is impossible to determine its exact price at the time of filing the claim, the court preliminarily determines the amount of the court fee with subsequent collection of the underpaid amount or refund of the overpaid court fee according to the claim price set by the court when deciding the case.
In case of an increase in the amount of claim requirements or a change in the subject of the claim, the unpaid court fee must be paid before applying to the court with the relevant application. In case of a decrease in the amount of claim requirements, the issue of refunding the court fee is resolved in accordance with the law.
7. How to Save 20% on Court Fees
The court fee is charged in the corresponding amount from the subsistence minimum for able-bodied persons established by law as of January 1 of the calendar year in which the relevant application or complaint is submitted to the court – in a percentage ratio to the price of the claim and in a fixed amount.
According to part 3 of article 4 of the Law ‘On Court Fees,’ when submitting procedural documents provided for in the second part of this article to the court in electronic form, a coefficient of 0.8 is applied to reduce the corresponding rate of the court fee.