The Supreme Court, as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation, considered case No. 755/7943/20-ts , in which it examined the issue of confirmation of expenses for legal assistance.
The circumstances of the case
From the materials of the case, it is known that by the decision of the Kyiv Court of Appeals, the Decision of the Dnipro District Court of Kyiv in the part of the decision by the court on the distribution of court costs was canceled and a new court decision was adopted in this part, which collected from the Darnytskyi RV DVS in Kyiv the CMU of the Ministry of Justice (m . Kyiv) in favor of the applicant 7040.80 UAH court costs.
The decision of the appellate court is motivated by the fact that the applicant provided adequate and admissible evidence to confirm the legal costs incurred by him for legal aid.
In the cassation appeal, the appellant noted that in the justification of the appeal, he noted that the applicant did not submit to the court a copy of the contract on the provision of legal assistance by a lawyer, therefore the appellate court was deprived of the opportunity to check not only the procedure for calculating the fee and its amount, but also to make sure that the lawyer received funds according to the provided receipts to the cash order were paid for the representation of the applicant in this particular case.
Conclusion of the Supreme Court
Under the circumstances of this case, there is no doubt that during the consideration of the case in the court of both the first and appellate instances, the applicant was provided with professional legal assistance by a lawyer on the basis of the contract on the provision of legal assistance dated March 3, 2020.
The Supreme Court emphasized that the fact that the applicant did not provide the court with a copy of this agreement on the provision of legal assistance by a lawyer does not refute the fact that he incurred costs for legal assistance in this particular case, and not another, since the applicant provided other documents to confirm the costs incurred by him for legal assistance appropriate and admissible evidence, namely: a warrant for the provision of legal (legal) assistance dated June 4, 2020, issued on the basis of the contract on the provision of legal assistance dated March 3, 2020; certificate on the right to practice as a lawyer dated December 16, 2004; receipts for profitable cash order No. 14, No. 2 and No. 3.
Receipts for the revenue cash order, submitted by the applicant to the court order, are adequate evidence of his incurring the costs of legal aid. Under such circumstances, the appellate court came to a well-founded conclusion that the decision of the court of first instance in the part of the refusal to recover court costs for legal aid is subject to cancellation, with the adoption of a new court decision in this part about the recovery of legal aid costs from the Internal Revenue Service in favor of the applicant in in the amount of UAH 6,200.00.
The Supreme Court noted that the applicant's reference in the cassation appeal to the conclusions set forth in the decision of the Great Chamber of the Supreme Court of June 27, 2018 in case No. 826/1216/16 is unfounded, since in the specified case the Supreme Court came to the conclusion that in order to confirm the composition and of the amount of expenses related to the payment of legal assistance, it is necessary to provide the court with an agreement on the provision of legal assistance (a power of attorney agreement, an agreement on the provision of legal services, etc.), documents that testify to the payment of fees and other expenses associated with the provision of legal assistance assistance, and issued in accordance with the procedure established by law (receipt for a profitable cash order, payment order with a bank note or other bank document, cashier's checks, business trip certificate). The specified expenses must be documented and proven.
That is, the Supreme Court formulated a conclusion about which documents can be submitted to confirm the composition and amount of expenses related to the payment of legal aid. This list is not exhaustive. The issue of assessing the sufficiency of the evidence submitted to support the costs incurred for professional legal assistance or those to be incurred is within the court's discretion.
The applicant provided appropriate and admissible evidence in support of the costs incurred by him for legal assistance, namely: the order for the provision of legal (legal) assistance dated June 4, 2020, issued on the basis of the contract on the provision of legal assistance dated March 3, 2020; certificate on the right to practice as a lawyer dated December 16, 2004; receipts for profitable cash order No. 14, No. 2 and No. 3.
Having reviewed the court decision in the cassation procedure within the arguments and requirements of the cassation appeal, which became the basis for opening the cassation proceedings, having checked the correctness of the application of procedural law by the court of appeal, taking into account the impossibility of establishing or (and) considering as proven the circumstances that were not established in the decisions courts of previous instances, the Supreme Court came to the conclusion that since the arguments of the cassation appeal do not refute the correctness of the conclusions of the appellate court and do not give grounds to believe that the court violated the norms of procedural law, therefore the cassation appeal is unfounded and subject to being dismissed without satisfaction, and the contested decision to be left unchanged .