The burden of proving the disproportionality of costs rests with the party that makes a request for a reduction of costs for the payment of legal assistance of a lawyer, which are subject to distribution between the parties.
This was emphasized by the Supreme Court as part of the panel of judges of the Cassation Commercial Court in case No. 922/3649/20 .
The circumstances of the case
From the case materials, it is known that the Supreme Court received an application from the Public Union "K" for the adoption of an additional court decision, in which the applicant, in particular, requested to collect legal expenses for professional legal assistance in the amount of UAH 10,000 from LLC "P" in favor of the General Court.
Later, on 02.12.2021, LLC "P" received a request to the e-mail address of the Supreme Court to reduce the amount of expenses for professional legal assistance of the lawyer, in which the defendant, in particular, requested to reduce the amount of expenses for professional legal assistance declared by the plaintiff to UAH 3,000.
As for the defendant's arguments about the plaintiff's non-compliance with the requirements of the third part of Article 126 of the Civil Code of Ukraine, in particular, the failure to provide a detailed description of the work (providing services) performed by the lawyer and the expenses incurred by him, the Supreme Court notes that the mentioned GS expenses were documented and proved, in particular, all necessary documents for the collection of expenses for professional legal assistance, which confirm the list, volume and cost of the services provided by the lawyer, indicating the time spent by him for each type of work, given that the absence of only a detailed description of the work (provision of services) cannot indicate the absence grounds for allocation of costs for professional legal assistance.
The Supreme Court emphasizes that the burden of proving the disproportionality of costs rests with the party that makes a request to reduce the costs of paying for the attorney's legal assistance, which are subject to distribution between the parties (Parts 5-6 of Article 126 of the Commercial Procedure Code of Ukraine).
"P" LLC did not provide evidence or justifications, including calculations, which would indicate the disproportionality, and/or unreasonableness, and/or unreality of the calculation of costs or the inappropriateness of the lawyer's services for this case.
The Supreme Court noted that in applying the criterion of proportionality of costs for the payment of attorney's services, the court uses a rather wide discretion, which, nevertheless, should be based on the criteria defined in the fourth part of Article 126 of the Civil Procedure Code of Ukraine.
These criteria are applied by the court in the presence of evidence provided by the party indicating the disproportionality of the costs, and justification of the non-compliance of the declared costs with these criteria. "P" LLC, noting the insignificant duration of the court session, did not justify and did not provide adequate evidence of the time actually spent by the lawyer to participate in the court session, including calculations that would indicate the unreasonableness or incorrectness of the calculation of costs. LLC "P" did not provide the court with evidence or justifications, including calculations, which would indicate the disproportionality, and/or unreasonableness, and/or unreality of the calculation of costs or the inappropriateness of the lawyer's services for this case.
In view of the above, the court of cassation refuses LLC "P" to grant the request to reduce the costs of professional legal assistance of the lawyer.
The Supreme Court notes that the lawyer did participate in two Supreme Court hearings in this case and submitted a response to the cassation appeal, which was accepted by the court for consideration. Having assessed in accordance with Article 86 of the Civil Procedure Code of Ukraine, the evidence of legal costs provided by the plaintiff, namely the costs of a lawyer in the court of cassation, the court, guided by Articles 74-79, considers them to be appropriate, admissible and as confirming the costs of professional legal assistance.
At the same time, when deciding on the distribution of court costs to a business, in the presence of a party’s objection to the distribution of costs to a lawyer or on its own initiative, guided by the criteria defined in parts 5-7, 9 of Article 129 of the Civil Procedure Code of Ukraine, the court may not award the party in whose favor the decision was made court decision, all her expenses for professional legal assistance.
Taking into account the circumstances of the case, the Supreme Court refused to grant the request of LLC "P" to reduce the costs of the lawyer's professional legal assistance.
The Civil Union's application for the adoption of an additional court decision regarding the collection of costs for professional legal assistance was partially granted. The Supreme Court recovered from the Limited Liability Company "P" the costs of providing legal aid in the amount of 5,000 (five thousand) UAH.