(Court of Appeal of Kyiv in case no. 753/1203/18 of August 28, 2018)
In this controversy, the defendant, on whose side the lawyer of the bar association did not object to the collection of funds from him under the previous contract of sale of the apartment, the dispute actually took place around the application of the provision st.137 of the Civil Code of Ukraine, which provides for the distribution of expenses for professional legal assistance.
The plaintiff, for his part, provided a contract concluded between the plaintiff and the law office on the provision of legal services, a detailed description of the work (services rendered) performed by a lawyer. The defendant has applied for a reduction of such expenses due to the non-proportionality of the costs of legal assistance with the complexity of the case, the time spent by the lawyer to perform the relevant work, the services rendered, the value of the claim, the value of the case for the party, or public interest in the case.
In accordance with Part 6 of Article 117 of the Civil Code of Ukraine, the burden of proving non-proportionality of the costs lies with the party requesting a reduction in the cost of legal assistance to the lawyer, which is subject to division between the parties.
The court of first instance, without giving reasons, refused the defendant in satisfaction of the petition and decided to allocate the lawyer's expenses in favor of the plaintiff in full amount of 20% of full or partial achievement of the purpose of the contract concluded between the plaintiff and the law office and the company's acquisition of the right to receive from the date of the legal validity of the court decision, which was accepted in favor of the client.
Disagreeing with the decision, the defendant lodged an appeal.
Court of Appeal has reduced the amount of expenses for professional legal aid more than twice. The reason was the court's application of the provisions of Part 1 of Article 177 and Part 1 of Article 628 of the Civil Code of Ukraine to the controversial legal relationship, in which the court indicated the inadmissibility of an attachment to obtaining the result of the work of the plaintiff's lawyer before the court decision, which would be taken in favor of the client, since the achievement of such a result goes beyond the subject of a contract entered into between a lawyer and the plaintiff. The decision of the court is an act of the body of the judiciary that is adopted, is drawn up and signed exclusively by the judges in accordance with well-defined procedures of judicial proceedings in the name of Ukraine on the principles of the rule of law. Therefore, the possibility of belonging to the judicial authorities to the sphere of private law regulation is excluded, and hence - to the subject of civil contracts.
That is, a court decision does not belong to the objects of civil rights, and its adoption in a particular case is not the result of the services provided to the lawyers of the plaintiff, and therefore can not be the subject of the contract. Thus, by reducing the amount of expenses for professional legal assistance, the court proceeded from the fact of the voluntary payment of money to the defendant in favor of the plaintiff before and during the consideration of the case, which had to be calculated as 20% of the paid-up funds.
However, disagreeing with the decision of the court of appellate instance, the defendant's lawyer filed a cassation appeal based on the use of the right to causational appeal on issues of law that are fundamental to the formation of a single law enforcement practice provided for in paragraph "a" of Article 389 of the Civil Procedure Code of Ukraine .
In particular, an open question in the ruling of the Court of Appeal was the definition of the concept of "the cost of legal assistance". By changing the decision of the first instance, the Court of Appeals applied the practice of the Supreme Court (the ruling of the Armed Forces of June 12, 2018, in case number 462 \ 9002 \ 14-ts, in which in such a relationship the court allowed to rely on professional legal assistance, when the party monthly paid a lawyer a certain amount, and refused to meet the future fee (the amount required in the future) for the above reasons.
The court of both instances found that the plaintiff did not pay the lawyer's office (lawyer). That is, in addition to the fee for success, no other financial "expenses" before the lawyer the plaintiff did not bear, the primary settlement documents did not provide.
In addition, referred to in Article 116 of the Civil Code of Ukraine, the definition of "court costs" by definition includes only the actual costs borne by the parties at the date of the corresponding court decision, the costs associated with the proceedings (court fees, costs for interpreter services, expenses for judicial examination, expenses for legal assistance, etc.).
In particular, according to paragraph 1 of the Resolution of the Plenum of the Highest specialized court of Ukraine on consideration of civil and criminal cases "On the application by courts of legislation on court costs in civil cases" dated October 17, 2014, No. 10, court costs are statutory costs (cash) of parties, others the persons involved in the case, incurred by them in connection with its consideration and decision.
Thus, in my opinion, the courts of both instances in the contested decisions mistakenly departed from the practice of the Supreme Court and satisfied the recovery from my principal of the lawyer's success fee. And this issue should be finally resolved by the Supreme Court, since it is really important for the formation of the foundations of the application of a single pato application. (??)
Separately, the author wishes to point out that in the case law on civil cases, in his opinion, the principle of application of Clause 4 of Article 117 of the Civil Code of Ukraine on the proportionality of the costs of services of a lawyer in rendering the last of his services is still not disclosed.
It is not clear which criteria a court should be guided by reducing the cost of legal aid, which consist, for example, of the cost of an attorney's work hour, what is the cost of such an appearance, whether there should be an external element of the image, a lawyer's ranking, or whether a case is important to a person the significance of whether the person is a public figure and, accordingly, this case has a public interest in society.
In deciding whether to allocate or refuse to allocate the corresponding costs, the content of the motive of the courts is reduced, only, to the presence or absence in the materials of the case of the contract for legal assistance and documented costs incurred for such assistance. We hope that the future judicial practice will give appropriate answers.