Reduction of costs of legal assistance collected in court (+ Template of a request for a reduction of the costs of professional legal assistance of a lawyer, which are to be divided between the parties (Economic process)

As you know, and in accordance with Article 16 of the Economic Procedure Code of Ukraine, the parties to the case have the right to use legal assistance. Representation in court, as a type of legal aid, is carried out exclusively by a lawyer (professional legal aid), except for cases established by law.

Representation, according to part. 1, 3 Art. 237 of the Civil Code of Ukraine, there is a legal relationship in which one party (representative) is obliged or has the right to perform a transaction on behalf of the other party that it represents. Representation arises on the basis of a contract, a law, an act of a body of a legal entity and on other grounds established by acts of civil legislation.

At the same time, a lawyer or a legal representative can be a representative in court (Part 1 of Article 58 of the Economic Procedural Code of Ukraine).

The lawyer provides professional legal assistance, which is regulated by the Law of Ukraine "On Advocacy and Advocacy".

Advocacy is carried out on the basis of an agreement on the provision of legal assistance (Part 1 of Article 26 of the Law on Advocacy and Advocacy).

According to Clause 4 of Art. 1 of the Law of Ukraine "On Advocacy and Advocacy", an agreement on the provision of legal assistance is an agreement under which one party (lawyer, law office, bar association) undertakes to provide protection, representation or provide other types of legal assistance to the other party ( to the client) on the terms and in the order specified by the contract, and the client undertakes to pay for the provision of legal assistance and the actual costs necessary for the performance of the contract.

Representation is a type of lawyer's activity, which consists in ensuring the implementation of the rights and obligations of the client in civil, economic, administrative and constitutional proceedings, in other state bodies, before natural and legal entities, the rights and obligations of the victim during the consideration of administrative cases offense, as well as the rights and obligations of the victim, civil plaintiff, civil defendant in criminal proceedings (Clause 9, Article 1 of the Law on Advocacy and Advocacy).

The law provides for the receipt of a certain remuneration (fee) for the performance of advocacy activities.

The fee is a form of remuneration of the lawyer for 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, terms of return, etc. are defined in the contract on the provision of legal assistance; when determining the amount of the fee, the complexity of the case, the lawyer's qualifications and experience, the client's financial condition 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 on Advocacy and Advocacy).

As stated in Article 123 of the Economic Procedural Code of Ukraine, court costs consist of the court fee and costs related to the consideration of the case. Expenses related to the consideration of the case include expenses, in particular, for professional legal assistance.

It should be noted that 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 legal costs, the court may refuse to reimburse it for the corresponding legal costs, with the exception of the amount of the court fee paid by it; the preliminary calculation of the amount of court costs does not limit the party in proving another actual amount of court costs, which are subject to distribution between the parties based on the results of the case (Article 124 of the Economic Procedure Code of Ukraine).

Expenses for professional legal assistance, in particular, are regulated by Art. 126 of the Economic Procedure Code of Ukraine, according to which the costs associated with the legal assistance of a lawyer are borne by the parties, except in cases of providing legal assistance at the expense of the state. Based on the results of the case review, the costs of the lawyer's professional legal assistance are subject to distribution between the parties along with other court costs.

For the purpose of apportionment of court costs:

1) the amount of expenses for professional legal assistance of a lawyer, including a lawyer's fee for representation in court and other professional legal assistance related to the case, including preparation for its consideration, collection of evidence, etc., as well as the cost of services of a lawyer's assistant, is determined in accordance with with the terms of the contract on the provision of legal assistance and on the basis of relevant evidence regarding the scope of services provided and works performed and their value paid or payable by the relevant party or a third party;

2) the amount to be paid in order to compensate the lawyer's expenses necessary for the provision of legal assistance is established in accordance with the terms of the agreement on the provision of legal assistance on the basis of relevant evidence that confirms the implementation of the relevant expenses.

To determine the amount of expenses for professional legal assistance for the purpose of distribution of legal expenses, the party to the case submits a detailed description of the work (services) performed by the lawyer and the expenses incurred by him, necessary for the provision of legal assistance.

In accordance with Part 4 of Art. 126 of the Economic Procedural Code of Ukraine, the amount of expenses for the attorney's services must be commensurate with:

1) the complexity of the case and the work performed by the lawyer (services provided);

2) the time spent by the lawyer on performing the relevant work (providing services);

3) the amount of services and works performed by the lawyer;

4) the cost of the lawsuit and (or) the importance of the case for the party, including the impact of the resolution of the case on the party's reputation or public interest in the case.

In case of non-compliance with the requirements of Part 4 of Art. 126 of the Economic Procedural Code of Ukraine, the court may, at the request of the other party, reduce the amount of expenses for professional legal assistance of a lawyer, which are subject to distribution between the parties.

Therefore, in order to reduce the cost of legal assistance, you must file a petition in court to reduce the costs of professional legal assistance of a lawyer. From the analysis of the cited articles, it follows that such a motion is filed by a party who does not agree to the relevant costs after the costs have been declared.

According to Part 5 of Art. 129 of the Economic Procedural Code of Ukraine, when deciding on the distribution of court costs, the court takes into account:

1) whether these expenses are related to the consideration of the case;

2) whether the amount of such expenses is justified and proportionate to the subject of the dispute, taking into account the price of the claim, the importance of the case for the parties, including whether the result of its resolution could affect the reputation of the party or whether the case caused public interest;

3) the behavior of the party during the consideration of the case, which led to the delay of the consideration of the case, in particular, the submission by the party of clearly unsubstantiated statements and motions, groundless assertion or denial by the party of certain circumstances that are important for the case, groundless overstating of claims by the plaintiff, etc.;

4) the actions of the party regarding the pre-trial settlement of the dispute and the peaceful settlement of the dispute during the proceedings, the stage of the proceedings at which such actions were taken.

The legal criteria by which the court should assess court costs, including legal aid costs, are indicated above. In the future, we will try to provide some overview of judicial practice regarding the reimbursement of court costs, in particular, the costs of legal assistance.

Therefore, in accordance with Part 1 of Article 9 of the Constitution of Ukraine, current international treaties, the binding consent of which was given by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine.

Article 17 of the Law of Ukraine "On the Implementation of Decisions and Application of the Practice of the European Court of Human Rights" specifies that courts apply the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights as a source of law when considering cases.

According to the practice of the European Court of Human Rights, the applicant has the right to reimbursement of legal and other costs only if it is proved that such costs were actual and unavoidable, and their amount was justified (the case of "Himaydulina and others v. Ukraine" dated 10.12.2009 , the case "Baryshevsky v. Ukraine" dated February 26, 2015). And also the conclusions of the ECtHR stated in the case "East/West Alliance Limited" v. Ukraine" dated 02.06.2014, according to which the applicant has the right to compensation for legal and other costs, only if it is proven that such costs were actual and unavoidable, and their size is justified; "Lavents v. Latvia" dated 28.11.2002, based on the result of which the ECtHR decided that only reasonable costs are reimbursed.

In accordance with the established practice of the Supreme Court (the decision of the Supreme Court of the Supreme Court dated 07.08.2018 in case No. 916/1283/17, dated 30.07.2019 in case No. 902/519/18), in applying the criterion of proportionality of costs for the payment of attorney services, the court uses a fairly wide discretion, which, however, must be based on clearer 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 the evidence and justification of non-compliance of the declared expenses with these criteria provided by the party that notes the disproportionality of expenses. In addition, the Supreme Court noted in its decisions that in order to determine the amount of compensation, it is necessary to use the criteria of the reality of attorney's fees (establishing their validity and necessity) and the reasonableness of their amount, taking into account the specific circumstances of the case and the financial situation of both parties (the resolutions of the Supreme Court of the Supreme Court dated 10.10. 2018 in case No. 910/21570/17, dated 14.11.2018 in case No. 921/2/18, additional resolution of the Supreme Administrative Court of Ukraine dated 11.12.2018 in case No. 910/2170/18, dated 10.10.2019 in case No. 909/116 /19, dated 18.03.2021 in case No. 910/15621/19, resolution of the Supreme Court of Ukraine dated 19.02.2020 in case No. 755/9215/15-ts, additional resolution of the Supreme Court dated 21.07.2020 in case No. 915/1654/19, resolution Verdict of the Supreme Court dated July 7, 2021 in case No. 910/12876/19, Resolution of the Supreme Court dated January 24, 2022 in case No. 911/2737/17).

Also, it should not be forgotten that according to Art. 36 of the Law of Ukraine "On the Judicial System and the Status of Judges", the Supreme Court is the highest court in the judicial system of Ukraine. The Supreme Court is the highest court in the judicial system of Ukraine, which ensures stability and unity of judicial practice in the order and manner determined by the procedural law. The Supreme Court, in particular, analyzes judicial statistics, summarizes judicial practice; ensures equal application of legal norms by courts of various specializations in the order and manner determined by the procedural law.

In accordance with Part 6 of Art. 13 of the Law of Ukraine "On the Judiciary and the Status of Judges", conclusions regarding the application of legal norms set forth in the Supreme Court's rulings are taken into account by other courts when applying such legal norms.

At the same time, according to Part 4 of Art. 236 of the Code of Civil Procedure of Ukraine, when choosing and applying the rule of law to disputed legal relations, the court takes into account the conclusions on the application of the rule of law set forth in the Supreme Court's rulings.

That is why the analysis of court practice, which sometimes changes very dynamically, is the most important prerequisite for drafting any document to the court and, in particular, a request to reduce the amount of expenses for legal assistance of a lawyer, which are subject to distribution between the parties.

You can create a request to reduce the amount of expenses for professional legal assistance of a lawyer, which are to be distributed between the parties (Economic process), in the Instaco designer by following the link. To create, you only need to enter the necessary data in the designer.

A sample Petition to reduce the amount of attorney's legal fees to be distributed between the parties was prepared by attorney Natalya Krasnokutska (Instagram @advocate_knn, Facebook instaADVOCATE).

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