The Supreme Court prohibited the unreasonable reduction of reimbursement of legal costs. The Supreme Court clarified the rules for collecting legal and pre-trial costs Supreme Court on legal costs
In order to ensure uniform practice in the application by courts of legislation regulating the procedure for reimbursement of legal costs in civil, administrative cases, and economic disputes, the Plenum of the Supreme Court Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 N 3-FKZ “On the Supreme Court of the Russian Federation”, Decides to make the following clarifications:
1. Legal costs, consisting of state duty, as well as costs associated with the consideration of the case (hereinafter referred to as legal costs), represent monetary costs (losses) distributed in the manner prescribed by Chapter 7 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation), Chapter 10 of the Code administrative proceedings of the Russian Federation (hereinafter - CAS RF), Chapter 9 of the Arbitration Procedural Code of the Russian Federation (hereinafter - APC RF).
Within the meaning of these provisions, the principle of distribution of legal costs is the reimbursement of legal costs to the person who incurred them, at the expense of the person in whose favor the final decision was made. judicial act on the case (for example, a decision of the court of first instance, a ruling to terminate the proceedings or to leave the application without consideration, a judicial act of the court of appeal, cassation, supervisory authority, which completed the proceedings at the relevant stage of the process).
2. Legal costs include expenses incurred by persons participating in the case, including third parties interested in administrative matter(Article 94 of the Code of Civil Procedure of the Russian Federation, Article 106 of the Arbitration Procedure Code of the Russian Federation, Article 106 of the CAS of the Russian Federation).
The list of legal costs provided for by these codes is not exhaustive. Thus, expenses incurred by the plaintiff, administrative plaintiff, applicant (hereinafter also referred to as plaintiffs) in connection with the collection of evidence before filing a statement of claim, administrative claim, application (hereinafter also referred to as claims) to the court may be recognized as legal costs if the incurrence of such expenses were necessary to exercise the right to go to court and the evidence collected before filing a claim meets the requirements of relevance and admissibility. For example, the plaintiff may be reimbursed for costs associated with the legalization of foreign official documents, provision by a notary before the initiation of a case in court of judicial evidence (in particular, evidence confirming the placement of certain information on the Internet), the costs of conducting a pre-trial study of the condition of the property, on the basis of which the price of the claim brought to court and its jurisdiction are subsequently determined.
The costs of issuing a power of attorney for a representative may also be recognized as legal costs if such a power of attorney was issued for the participation of a representative in a specific case or a specific court hearing in the case.
3. Costs associated with the consideration, resolution and settlement of a dispute out of court (appeal by subordination, mediation procedure) are not legal costs and are not reimbursed in accordance with the norms of Chapter 7 of the Code of Civil Procedure of the Russian Federation, Chapter 10 of the Code of Arbitration Procedures of the Russian Federation, Chapter 9 of the Arbitration Procedure Code of the Russian Federation.
4. In cases where the law or agreement provides for a claim or other mandatory pre-trial procedure for resolving a dispute, the costs caused by compliance with such a procedure (for example, the costs of sending a claim to the counterparty, preparing a report on the assessment of real estate when challenging the results of the determination cadastral value of a property by a legal entity, to appeal acts to a higher tax authority tax authorities non-normative nature, actions or inactions officials), including payment costs legal services, are recognized as legal costs and are subject to compensation based on the fact that the plaintiff did not have the opportunity to exercise the right to go to court without incurring such costs (Articles 94, 135 of the Code of Civil Procedure of the Russian Federation, Articles 106, 129 of the Code of Arbitration Procedures of the Russian Federation, Articles 106, 148 of the Arbitration Procedure Code of the Russian Federation).
5. When a claim is brought jointly by several plaintiffs or against several defendants (procedural complicity), the distribution of legal costs is made taking into account the peculiarities of the material legal relationship from which the dispute arose, and the actual procedural behavior of each of them (Article 40 of the Code of Civil Procedure of the Russian Federation, Article 41 of the CAS RF, Article 46 Arbitration Procedure Code of the Russian Federation).
If the persons, not in whose favor the judicial act was adopted, are joint debtors or creditors, legal costs are reimbursed by these persons in a joint and several manner (part 4 of article 1 of the Code of Civil Procedure of the Russian Federation, part 4 of article 2 of the Code of Arbitration Procedures of the Russian Federation, part 5 of article 3 of the Arbitration Procedure Code of the Russian Federation, articles 323, 1080 Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).
6. Legal costs incurred by third parties (Articles 42, 43 of the Code of Civil Procedure of the Russian Federation, Articles 50, 51 of the Arbitration Procedure Code of the Russian Federation), interested parties (Article 47 of the Code of Arbitration Procedures of the Russian Federation) who participated in the case on the side in whose favor the final judicial act in the case was adopted may be compensated to these persons based on the fact that their actual procedural behavior contributed to the adoption of this judicial act.
At the same time, the possibility of collecting legal costs in favor of the named persons does not depend on whether they entered the process on their own initiative or were brought to participate in the case at the request of a party or on the initiative of the court.
7. Persons who did not participate in the case, on whose rights and obligations the court adopted a judicial act, persons whose rights, freedoms and legitimate interests were violated by a judicial act, when appealing these judicial acts, enjoy the rights and perform the duties of persons participating in the case, in including those related to reimbursement of legal costs (part 3 of article 320, part 1 of article 376, part 1 of article 3911 of the Code of Civil Procedure of the Russian Federation, part 2 of article 295, part 1 of article 318, part 1 of article 332, part 1 of article 346 of the Code of Arbitration Code of the Russian Federation, article 42 of the Arbitration Procedure Code RF).
8. Persons who have applied to the court with a collective administrative claim or a statement in defense of the rights and legitimate interests groups of people use procedural rights plaintiff. Such persons, subject to their actual participation in the consideration of the case, following which a decision was made to satisfy the stated claims, have the right to compensation for the legal costs incurred by them. In turn, legal costs are recovered from these persons if the relevant requirements are refused (part 3 of article 42 of the Code of Arbitration Procedures of the Russian Federation, part 1 of article 22510, article 22512 of the Arbitration Procedure Code of the Russian Federation).
9. Transfer of the right protected in court in the order of universal or singular succession (inheritance, reorganization legal entity, transfer of ownership of a thing, assignment of the right of claim, etc.) entails the transfer of the right to compensation for legal costs, since the right to such compensation is not inextricably linked with the personality of the participant in the process (Articles 58, 382, 383, 1112 of the Civil Code of the Russian Federation). In this case, the court replaces the person participating in the case with his legal successor (Article 44 of the Code of Civil Procedure of the Russian Federation, Article 44 of the Code of Arbitration Procedures of the Russian Federation, Article 48 of the Arbitration Procedure Code of the Russian Federation).
The assignment of the right to compensation for legal costs as such is permitted not only after they have been awarded to a person participating in the case, but also during the period of consideration of the case by the court (Articles 382, 383, 3881 of the Civil Code of the Russian Federation). The conclusion of the said agreement before the award of legal costs does not entail a procedural replacement of the person participating in the case and who has ceded the right to reimbursement of legal costs by his legal successor, since such a right arises and passes to the legal successor only at the time of awarding legal costs in favor of the legal predecessor (clause 2 of Article 3881 of the Civil Code RF).
The transfer of the right to compensation for legal costs through universal or singular succession is possible both to the persons participating in the case and to other persons.
10. A person claiming the recovery of legal costs must prove the fact of their incurrence, as well as the connection between the costs incurred by the specified person and the case being considered in court with his participation. Failure to prove these circumstances is grounds for refusal to reimburse legal costs.
11. When resolving the issue of the amount of amounts collected for reimbursement of legal costs, the court does not have the right to reduce it arbitrarily, unless the other party raises an objection and does not provide evidence of the excessiveness of the costs collected from it (part 3 of Article 111 of the Arbitration Procedure Code of the Russian Federation, part 4 of Article 1 of the Code of Civil Procedure of the Russian Federation , part 4 of article 2 of the CAS RF).
At the same time, in order to implement the task of legal proceedings in a fair public trial, ensuring the necessary balance of procedural rights and obligations of the parties (Articles 2, 35 of the Code of Civil Procedure of the Russian Federation, Articles 3, 45 of the Code of Arbitration Procedures of the Russian Federation, Articles 2, 41 of the Arbitration Procedure Code of the Russian Federation), the court has the right to reduce the amount of legal costs, including the cost of paying for the services of a representative, if the to recover the amount of costs, based on the evidence available in the case, is clearly unreasonable (excessive) in nature.
Advertisement ).
In case of incomplete (partial) satisfaction of the requirements, the costs of paying for the services of a representative are awarded to each of the parties within reasonable limits and are distributed in accordance with the rule on the proportional distribution of legal costs (Articles 98, 100 of the Code of Civil Procedure of the Russian Federation, Articles 111, 112 of the Code of Arbitration Procedures of the Russian Federation, Article 110 of the Arbitration Procedure Code of the Russian Federation) .
13. Reasonable costs should be considered to be those costs for the representative's services that, under comparable circumstances, are usually charged for similar services. When determining reasonableness, the volume of the stated requirements, the price of the claim, the complexity of the case, the volume of services provided by the representative, the time required for the preparation of procedural documents, the duration of the consideration of the case and other circumstances may be taken into account.
The reasonableness of legal costs for the services of a representative cannot be justified by the fame of the representative of the person participating in the case.
14. Fare and the living expenses of the representative of the party are reimbursed by the other party to the dispute within reasonable limits based on the prices that are usually set for transport services, as well as prices for services related to the provision of accommodation in the place (region) in which they are actually provided (Article 94, 100 Code of Civil Procedure of the Russian Federation, articles 106, 112 CAS RF, article 106, part 2 of Article 110 of the Code of Arbitration Procedure of the Russian Federation).
15. The expenses of the representative necessary to fulfill his obligation to provide legal services, for example, expenses for familiarization with the case materials, for using the Internet, for mobile communications, for sending documents, are not subject to additional compensation by the other party to the dispute, since by virtue of Article 3092 of the Civil Code of the Russian Federation such expenses according to general rule, are included in the price of the services provided, unless otherwise follows from the terms of the contract (part 1, article 100 of the Code of Civil Procedure of the Russian Federation, article 112 of the Code of Arbitration Procedures of the Russian Federation, part 2 of article 110 of the Arbitration Procedure Code of the Russian Federation).
16. Costs of paying for the services of representatives incurred by bodies and organizations (including consumer rights protection societies) endowed by law with the right to go to court in defense of the rights, freedoms and legitimate interests of other persons (Articles 45, 46 of the Code of Civil Procedure of the Russian Federation, Articles 39, 40 CAS RF, Articles 52, 53, 531 of the Arbitration Procedure Code of the Russian Federation), are not subject to compensation, since this authority presupposes their independent participation in the trial without the involvement of representatives on a reimbursable basis.
17. If several persons participating in a case on one side conducted the case through one representative, the costs of paying for his services are subject to reimbursement according to the general rules of Part 1 of Article 100 of the Code of Civil Procedure of the Russian Federation, Article 112 of the Code of Arbitration Procedures of the Russian Federation, Part 2 of Article 110 of the Arbitration Procedure Code of the Russian Federation in accordance with actual expenses incurred by each of them.
18. Within the meaning of Articles 98, 100 of the Code of Civil Procedure of the Russian Federation, Articles 111, 112 of the Code of Arbitration Procedures of the Russian Federation, Article 110 of the Arbitration Procedure Code of the Russian Federation, legal costs are reimbursed when the courts resolve substantive legal disputes. Since the consideration of cases provided for in Chapters 28-30, 32-34, 36, 38 of the Code of Civil Procedure of the Russian Federation, Chapter 27 of the Arbitration Procedure Code of the Russian Federation, is aimed at establishing legal facts, definition legal status persons involved in the case or legal regime objects of law, and not for resolving a substantive legal dispute, costs incurred in connection with the consideration of these categories of cases are attributed to the persons participating in the case who incurred them, and are not subject to distribution according to the rules of Chapter 7 of the Code of Civil Procedure of the Russian Federation, Chapter 10 of the CAS of the Russian Federation , Chapter 9 of the Arbitration Procedure Code of the Russian Federation.
19. Costs incurred in connection with the consideration of claims, the satisfaction of which is not conditioned by the establishment of facts of violation or challenge of the rights of the plaintiff by the defendant, administrative defendant, are not subject to distribution among the persons participating in the case, for example, claims for divorce if there is mutual consent of the spouses. who have common minor children (clause 1 of Article 23 Family Code Russian Federation).
20. In case of incomplete (partial) satisfaction of property claims subject to assessment, legal costs are awarded to the plaintiff in proportion to the size of the claims satisfied by the court, and to the defendant - in proportion to the part of the claims that the plaintiff was denied (Articles 98, 100 of the Code of Civil Procedure of the Russian Federation, Articles 111, 112 CAS RF, Article 110 of the Arbitration Procedure Code of the Russian Federation).
21. Provisions procedural legislation on proportional compensation (distribution) of legal costs (Articles 98, 102, 103 of the Code of Civil Procedure of the Russian Federation, Article 111 of the Code of Arbitration Procedures of the Russian Federation, Article 110 of the Arbitration Procedure Code of the Russian Federation) are not subject to application when resolving:
No claim property nature, including those with a monetary value, aimed at protecting personal moral rights(for example, compensation for moral damage);
A claim of a property nature that is not subject to assessment (for example, to suppress actions that violate a right or create a threat of its violation);
demands for the collection of a penalty, which is reduced by the court due to the disproportion to the consequences of the violation of the obligation, the receipt by the creditor unjustified benefit(Article 333 of the Civil Code of the Russian Federation);
Requirements subject to consideration in the manner prescribed by the CAS of the Russian Federation, with the exception of requirements for the collection of mandatory payments and sanctions (Part 1 of Article 111 of the said code).
At the same time, the rule on proportional compensation (distribution) of legal costs is applied to economic disputes arising from public legal relations related to challenging non-normative legal acts of tax, customs and other authorities, if the adoption of such acts imposes a property liability on the applicant (Part 1 of Article 110 of the APC RF).
22. If the amount of claims changes after the initiation of proceedings in the case, the proportional distribution of legal costs should be based on the amount of claims supported by the plaintiff at the time the decision on the case was made.
At the same time, a reduction by the plaintiff in the amount of claims as a result of receiving evidence during the consideration of the case that this amount is clearly unfounded may be recognized by the court as an abuse of procedural rights and lead to a refusal to recognize the legal costs incurred by the plaintiff as necessary in whole or in part (Part 1 of Article 35 of the Code of Civil Procedure of the Russian Federation, Part 6 , 7 of Article 45 of the Code of Arbitration Procedures of the Russian Federation) or imposition on the plaintiff of the legal costs incurred by the defendant (Article 111 of the Arbitration Procedure Code of the Russian Federation).
Advertisement 3, part 3 of article 132 of the Arbitration Procedure Code of the Russian Federation).
Settlement of costs is carried out at the request of persons reimbursing such costs, or at the initiative of the court, which, based on the provisions of Article 56 of the Code of Civil Procedure of the Russian Federation, Article 62 of the Code of Arbitration Procedures of the Russian Federation, Article 65 of the Arbitration Procedure Code of the Russian Federation, brings this issue up for discussion between the parties.
24. In the event of partial satisfaction of both the initial and counter property claims, for which a proportional distribution of legal costs is carried out, the plaintiff’s legal costs for the initial claim are reimbursed in proportion to the size of the satisfied claims. The plaintiff's legal costs for a counterclaim are reimbursed in proportion to the amount of satisfied counterclaims.
25. In cases where the proceedings are terminated or the application is left without consideration, legal costs are recovered from the plaintiff.
However, if the proceedings are terminated due to the death of a citizen or the liquidation of a legal entity that was a party to the case, or statement of claim left without consideration due to the fact that it was filed incapacitated person or in connection with the failure of the parties who did not request the hearing of the case in their absence to appear in court on a second summons (paragraph seven of Article 222 of the Code of Civil Procedure of the Russian Federation), legal costs incurred by the persons participating in the case are not subject to distribution according to the rules of Chapter 7 of the Code of Civil Procedure of the Russian Federation, Chapter 10 of the CAS of the Russian Federation, Chapter 9 of the Arbitration Procedure Code of the Russian Federation.
If the statement of claim is left without consideration due to the fact that it was signed and filed by a person who does not have the authority to sign and (or) submit it, or was signed by a person official position which is not specified, the legal costs incurred by the participants in the process in connection with the filing of such an application are recovered from this person.
26. If the proceedings are terminated due to the plaintiff’s refusal of the claim in connection with the voluntary satisfaction of his demands by the defendant after the plaintiff goes to court, legal costs are recovered from the defendant (part 1 of article 101 of the Code of Civil Procedure of the Russian Federation, part 1 of article 113 of the Code of Arbitration Procedures of the Russian Federation, article 110 of the Arbitration Procedure Code of the Russian Federation) .
It should be borne in mind that abandonment of the claim is a right, and not an obligation, of the plaintiff, therefore, reimbursement of legal costs to the plaintiff under these circumstances cannot be made dependent on his statement of abandonment of the claim. Consequently, in the case of voluntary satisfaction of claims by the defendant after the plaintiff goes to court and accepts court decision in such a case, legal costs are also subject to recovery from the defendant.
27. When concluding a settlement agreement or reconciliation agreement, legal costs are distributed in accordance with its terms. In the event that the parties did not provide for the conditions for the distribution of legal costs in the settlement agreement or reconciliation agreement, the court resolves this issue taking into account the following.
The conclusion of a settlement agreement or a reconciliation agreement is conditioned by mutual concessions of the parties, and the termination of proceedings in the case due to this circumstance does not in itself indicate the adoption of a judicial act in favor of one of the parties to the dispute. Therefore, the legal costs incurred by the parties during the consideration of the case before they conclude a settlement agreement or a reconciliation agreement are attributed to them and are not subject to distribution.
At the same time, legal costs incurred by the court in connection with the consideration of the case at the expense of the corresponding budget budget system Russian Federation (Article 103 of the Code of Civil Procedure of the Russian Federation, Article 114 of the CAS of the Russian Federation), sums of money, subject to payment to witnesses, experts, specialists, are distributed by the court, including on its initiative, between the parties equally by issuing a ruling (Part 2 of Article 101 of the Code of Civil Procedure of the Russian Federation, Part 2 of Article 113 of the Code of Arbitration Code of the Russian Federation).
28. After the adoption of the final judicial act on the case, a person participating in the case has the right to apply to the court with a statement on the issue of legal costs incurred in connection with the consideration of the case, the compensation of which was not claimed during its consideration.
Such an issue is resolved by the court in a court hearing according to the rules provided for in Article 166 of the Code of Civil Procedure of the Russian Federation, Article 154 of the Code of Arbitration Procedures of the Russian Federation, and Article 159 of the Arbitration Procedure Code of the Russian Federation. Based on the results of its resolution, a determination is made.
When considering an application on the issue of legal costs, the court also resolves issues regarding the distribution of legal costs associated with the consideration of this application. Taking this into account, an application for reimbursement of legal costs incurred in connection with the consideration of an application on the issue of legal costs, filed after a ruling on the issue of legal costs, is not subject to acceptance for production and consideration by the court.
29. If legal costs associated with the consideration of the dispute on the merits are actually incurred after the adoption of the final judicial act on the case (for example, payment for accommodation, representative services was made after the resolution of the case on the merits), the person participating in the case has the right to apply to the court regarding such costs.
The court refuses to accept proceedings or terminates proceedings in relation to an application for legal costs, the issue of compensation or refusal to compensate for which was resolved in a previously issued judicial act, in relation to paragraph 2 of part 1 of Article 134, paragraph three of Article 220 of the Code of Civil Procedure of the Russian Federation, clause 4 of part 1 of article 128, clause 2 of part 1 of article 194 of the Code of Arbitration Procedures of the Russian Federation, clause 2 of part 1 of article 150 of the Arbitration Procedure Code of the Russian Federation.
30. The person who filed the appeal, cassation or supervisory complaint, as well as other persons who actually participated in the consideration of the case at the relevant stage of the process, but did not file a complaint, have the right to compensation for legal costs incurred in connection with the consideration of the complaint, if, based on the results of the consideration of the case, a final judicial act is adopted in their favor .
In turn, the person who filed an appeal, cassation or supervisory complaint, the satisfaction of which was refused, may be charged the costs of other participants in the process associated with the consideration of the complaint.
Costs incurred in connection with the revision of the entered into legal force of a judicial act due to new or newly discovered circumstances, are compensated to the participants in the process based on the favor of which party to the dispute the final judicial act in the relevant case was adopted.
The costs incurred by the participants in the process are subject to compensation, provided that they were due to their actual procedural behavior at the stage of consideration of the case by a court of appeal, cassation or supervisory authority, at the stage of review of a judicial act that has entered into legal force due to new or newly discovered circumstances.
31. Legal costs incurred by the claimant at the stage of execution of the court decision, associated with participation in court hearings to consider the debtor’s applications for a deferment, for an installment plan for the execution of the court decision, for changing the method and procedure for its execution, are reimbursed by the debtor (Articles 98, 100 of the Code of Civil Procedure of the Russian Federation, Articles 111, 112 CAS of the Russian Federation, Article 110 of the Arbitration Procedure Code of the Russian Federation).
32. Persons participating in the case must conscientiously use all procedural rights belonging to them, in connection with which the court has the right to attribute legal costs to a person who has abused his procedural rights and failed to fulfill his procedural duties, or not to recognize the legal costs incurred by him as necessary if this led to a breakdown court session, tightening trial, obstructing the consideration of the case and the adoption of the final judicial act.
33. In connection with the adoption of this resolution, the following are recognized as not subject to application:
Paragraph 33 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 N 12 “On some issues of application of the Arbitration Procedural Code of the Russian Federation as amended Federal Law dated July 27, 2010 N 228-FZ "On amendments to the Arbitration procedural code Russian Federation";
Paragraph three of paragraph 6 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 18, 2014 N 51 “On some issues arising when considering disputes with the participation of organizations engaged in collective management of copyright and related rights.”
Chairman of the Supreme Court of the Russian Federation V.M. Lebedev
Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V.V. Momotov
Ironically, it was precisely paragraph 33 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 1 dated January 21, 2016, “On some issues of application of legislation on the reimbursement of costs associated with the consideration of a case,” that paragraph 33 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 No. 12, which allowed for the recovery of expenses, was repealed incurred by a party when considering an application for distribution of legal costs.
The story begins with the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 16693/11 dated April 10, 2012, when the defendant, having won the case, applied to the court with an application for the distribution of legal costs, in which he asked to assign 30,000 rubles of expenses to the plaintiff for the services of a representative. The court granted the application, but the plaintiff challenged it in court appellate court. In the appeal, the defendant filed a motion to allocate another 10,000 rubles in expenses to pay for the services of the person representing the interests in the appellate court on the application for the distribution of legal costs. The appeal was refused, pointing out that the costs had already been allocated. The cassation supported.
When transferring the case for a new consideration, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that “within the meaning of the rules of the Arbitration Procedure Code of the Russian Federation, the right to reimbursement of legal expenses extends not only to expenses directly related to the consideration of the dispute, but also to legal expenses incurred by a person participating in the case in connection with consideration arbitration court statements, petitions and performance of certain procedural actions. The court’s consideration of applications for the distribution of legal costs is no exception.”
Subsequently, by Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 12, 2012 N 43, a similar rule was added to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 No. 12 (clause 33). Now this provision is not applicable, due to legal position Plenum of the Armed Forces of the Russian Federation No. 1 of January 21, 2016.
On the one hand, allowing for the recovery of costs for considering an application for the distribution of expenses, the question arises of the possibility of repeatedly filing an application for the distribution of expenses incurred when considering the issue of “costs for expenses”, etc. taking into account the application of Part 2 of Art. 112 of the Arbitration Procedure Code of the Russian Federation.
On the other hand, legal expenses for paying for the services of representatives in some cases are significant, for example, in the case of Aelita Softwear (No. A40-20664/08) 2.8 million rubles were recovered, in the case of Bread Factory No. 6 (No. A40-71609 /10) 25 million rubles were recovered, in the BILLY case (No. A40-35715/10) 121,264.09 US dollars and 28.8 million rubles were recovered. The recovery of such expenses is comparable to a full court case: several meetings, collection and presentation of evidence of reasonableness of expenses, etc. Involving the same representatives in a lawsuit on the distribution of costs will inevitably entail additional costs that the party will not be able to reimburse in the future. In this sense, she will suffer adverse consequences, which is probably not entirely correct.
Maybe it would be worthwhile to somehow resolve this issue more gently, for example, by introducing into paragraph 33 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 No. 12 a restriction on repeated applications for the distribution of legal costs?
Supreme Court summarized the practice of reimbursement of legal costs and said his weighty word in Resolution of the Plenum of January 21, 2016 No. 1 “On some issues of application of legislation on reimbursement of costs associated with the consideration of a case,” which extends its effect to arbitration, civil and administrative proceedings.
What I would like to especially note about this Resolution of the Plenum.
1. The principle of reimbursement of legal expenses to the person in whose favor a judicial act was adopted was confirmed. This also applies to decisions to terminate proceedings and to leave an application without consideration.
2. Evidence, the collection of which was associated with legal costs before filing a claim, must be relevant and admissible, and going to court without this evidence would be difficult. Expenses for pre-trial settlement are recognized as legal costs if it is mandatory.
3. The Plenum confirmed the long-term practice of collecting expenses for notarization representative's power of attorney: it must be issued to participate in a specific case or in a specific court hearing in the case.
4. Third parties also have the right to compensation for legal costs. But only in the event of a procedural victory for “their” side. And, what is significant, only in the case of such procedural behavior that contributed to the adoption of a judicial act (passive behavior, avoidance of answering questions from the court, delaying the process can deprive third parties of the right to reimbursement of legal costs).
5. Succession under a disputed right also entails succession in the right to compensation for legal expenses.
6. The duality of the position regarding the issue of reducing the amount of collected legal costs has not been eliminated: the inadmissibility of their arbitrary reduction when the courts have the right to reduce the amount of costs in case of excessiveness.
7. The Plenum also ranked entertainment expenses that are and are not subject to recovery. Thus, expenses for accommodation and travel of the representative are definitely subject to recovery. But the parties will still argue about whether it was enough for the representative to spend the night in a hostel or whether a 3-star hotel was required for this, leaving this issue to the discretion of the court.
8. The representative’s expenses for his “legal” work - communication, sending documents, expenses for familiarizing himself with the case materials, are not subject to reimbursement, since, as a general rule, such expenses are included in the cost of services. However, the parties may provide otherwise by agreement and exclude such expenses from the cost of services in order to then have the right to recover them in court
9. Legal costs are reimbursed by the courts when considering substantive legal disputes. In cases of establishing facts that have legal meaning, or in cases where there is no dispute about the law (as an option - divorce with the consent of both spouses), legal costs are not subject to distribution.
10. The court may recognize an abuse of rights on the part of the plaintiff if, during the consideration of the case, evidence was obtained of a clear disproportionality of the stated requirements and for this reason the plaintiff reduced his claim. IN in this case the court may refuse to reimburse the plaintiff for legal costs or even impose an obligation on him to compensate the defendant’s costs.
At the same time, the Plenum did not explain what to do in a situation where it was not the plaintiff who reduced the amount of the claims, but the court satisfied the claims in a significantly smaller amount, seeing an abuse of right in the actions of the plaintiff.
11. The position of the Plenum regarding the situation of the plaintiff’s refusal of the claim in connection with the voluntary satisfaction of his demands by the defendant is noteworthy. In this case, the Plenum explains, legal costs are recovered from the defendant.
It is interesting that paragraph 1 of Art. 101 of the Code of Civil Procedure of the Russian Federation says exactly the opposite - if the plaintiff refuses the claim, legal expenses will not be reimbursed to him. If there was a fact of voluntary satisfaction of the plaintiff’s demands, then he should not abandon the claim, and not support his demands in the process. And then the plaintiff will retain the right to reimbursement of legal costs.
Of course, the position of the Plenum is more logical and is aimed at unloading ships. On the other hand, this is such a judicial act, which is supposedly “not a source of law.”
12. Regarding the distribution of legal costs when concluding a settlement agreement: if the settlement agreement does not distribute legal costs, the court assigns them to each of the parties, since the reconciliation of the parties, conditioned by mutual concessions, does not in itself indicate the adoption of a judicial act in anyone’s favor .
13. The Plenum confirmed the possibility of filing an application for reimbursement of legal costs after the adoption of the final judicial act. The same applies to legal costs actually incurred after the adoption of the final judicial act. For example, if payment for the representative’s accommodation services is made some time after the dispute is resolved.
14. The Supreme Court did not ignore the issue of reimbursement of legal costs at the stage of execution of the decision. The claimant must be reimbursed for legal expenses incurred in connection with the consideration of the debtor's applications for a deferment or installment plan for the execution of a court decision, for a change in the method and procedure for its execution. It can be assumed, thatit also implies that the debtor does not have the right to demand compensation from the claimant for legal expenses incurred at this stage.
Thus, the Plenum of the Supreme Court significantly facilitated the work of courts and lawyers, summarizing the existing practice and introducing several innovations.
However, in our opinion, the Plenum did not solve all the problematic aspects of law enforcement practice.
Within the meaning of these provisions, the principle of distribution of legal costs is the reimbursement of legal costs to the person who incurred them, at the expense of the person in whose favor the final judicial act in the case was adopted (for example, a decision of the court of first instance, a ruling to terminate proceedings in the case or to leave applications without consideration, a judicial act of the court of appeal, cassation, or supervisory authority, which completed the proceedings in the case at the appropriate stage of the process).
32. Persons participating in the case must conscientiously use all procedural rights belonging to them, in connection with which the court has the right to attribute legal costs to a person who has abused his procedural rights and failed to fulfill his procedural duties, or not to recognize the legal costs incurred by him as necessary if this led to the disruption of the court hearing, delaying the trial, preventing the consideration of the case and the adoption of the final judicial act.
Russian Federation