Fixed fee: time of work is important for reimbursement of attorney's fees – SC
The procedure for calculating the hourly fee differs from the fixed fee, which does not take into account the actual time spent. However, in both cases, they are taken into account when deciding on the reimbursement of legal aid expenses.
This was pointed out by the Commercial Court of Cassation of the Supreme Court in its additional resolution No. 910/12155/22 dated February 13, 2024, the text of which has recently appeared in the USRCD.
Having won the dispute in the cassation instance, the company asked the court to recover legal aid costs in the amount of UAH 18 thousand from its procedural opponent. The latter considered this amount to be excessive and filed a motion to reduce the legal fees to UAH 3 thousand.
Among the reasons for reducing the costs, he pointed out that the amount of costs was not commensurate with the complexity of the case and the work performed by the lawyers.
The high judges reminded that the main grounds and principles for reimbursement of legal aid costs are set out in paragraphs 7.1 - 7.9 of the resolution of the Supreme Court of Ukraine dated 05.07.2023 in case No. 911/3312/21. Also, the Supreme Court composed of judges of the Joint Chamber of the CGS considered the issue of expenses for the payment of attorney's fees in its resolutions of 02.02.2024 in case No. 910/9714/22 and of 03.11.2023 in case No. 914/2355/21.
According to part 4 of Art. 126 of the EPC, the amount of expenses for attorney's fees should be commensurate with:
1) the complexity of the case and the work performed by the attorney (services rendered);
2) the time spent by the advocate to perform the relevant work (services);
3) the scope of services rendered by the advocate and work performed;
4) the value of the claim and (or) the importance of the case for the party, including the impact of the case resolution on the reputation of the party or public interest in the case.
In case of non-compliance with these requirements, the court may, at the request of the other party, reduce the amount of costs. In this case the burden of proving disproportionality of expenses is on the party applying for their reduction.
In the case under consideration the fixed amount of the fee was established. In this case, the actual amount of time spent by the attorney in providing services to the client is not calculated. The amount of the fee is determined only by agreement between the advocate and the client, and the court has no right to interfere in these legal relations. At the same time, the obligations between the advocate and the client are not binding on the court in the context of deciding on the distribution of court costs.
Therefore, a party may prove the disproportionality of expenses, including, but not limited to, without specifying in the detailed description of the work (services rendered) information about the time spent on the provision of legal assistance. And taking into account the specific circumstances, the court may limit the amount, taking into account the reasonable necessity of court costs in the case.
Taking into account the disproportionality of the amount of the fixed fee to the complexity of the case, the price of the claim, the volume of materials in the case, the number of procedural documents prepared, and the number of meetings, the Supreme Court concluded that the claimed amount of compensation for expenses was excessive, and therefore awarded it partially in the amount of UAH 10 thousand.
Popular news
Legislation
The UNBA explained what could undermine the plan to introduce plea agreements
Information regarding who pays whom, how much, and on what grounds under a plea agreement must be made public. However, as long as this information is classified as a state secret or personal data, the court will continue to be able to close proceedings and restrict access to judgments.
Interaction
The UNBA and the German Institute for Eastern Law will prepare joint legal opinions
Ukrainian advocates and German legal scholars will jointly prepare comparative legal studies, expert opinions, and professional events. The UNBA reached this agreement with the Institute for Eastern European Law in Regensburg, which has been researching the laws of Central and Eastern European countries for nearly 70 years.
Legislation
Proceedings against military personnel following AWOL require clear deadlines — UNBA
A soldier’s return to duty after AWOL does not necessarily mean the end of criminal proceedings. To ensure that the case does not remain at the pretrial investigation stage, a clear procedure for the investigator and prosecutor is required.
Educational events
A one-time payment or royalties? Students were briefed on changes to copyright agreements
As a general rule, property rights to a work created by an employee are transferred to the employer, but the author retains the right to remuneration. European law requires that this remuneration be based on the actual income generated by the work, rather than being limited to a one-time payment.
Legislation
The UNBA warned of the risk of customs barriers for Ukrainian paper and furniture
Ukraine’s anti-deforestation rules are intended to preserve export access to the EU market. However, without paper and furniture on the list of goods, without effective sanctions, and with enforcement beginning only in 2030, these rules could hinder that goal.
Legislation
Fines for loud exhaust — based on a standardized measurement method — UNBA
Measures to combat intentionally loud exhaust noises are justified, especially during wartime. However, as long as the law does not specify which noise standard to apply or how to measure it on the road, this new liability can be neither fair nor effective.
Educational events
What should an advocate do if a client is under severe stress?
An advocate may encounter a client in a state of acute stress, when the person is looking at the other person but does not see them. Before discussing the case, it is important to bring the client back to reality: establish contact, ask a few questions, and engage their senses.
Guarantees of the practice of law
Guarantees for advocacy without protective measures: proposed changes to the codes
The current law sets forth the rights and guarantees of the legal profession, but lacks the tools to protect them. The future law on advocacy is intended to fill this gap through amendments to criminal, administrative and procedural legislation.
Publications
Vasyl Kolishnyi, «Law and Business» Supporting mental health should become part of the professional culture of the Bar, - H. Udovenko
Volodymyr Matsko Extradition during wartime: when the risks outweigh the request
Volodymyr Matsko Extradition as a systemic form of rights violations
Victoria Yakusha, Law and Business The anti-corruption vertical cannot «take care» of the Bar as an institution, - acting head of the HQDCB
Censor.net Protecting advocates – protecting justice: addressing concerns about the new law
Ihor Kolesnykov A BRIEF SUMMARY REGARDING THE APPLICATION OF THE ORDER ON EXTENDED CONFISCATION IN LATVIA REGARDING FINANCIAL ASSETS OF…
Valentyn Gvozdiy WORKING IN A WAR ZONE
Lydia Izovitova Formula of perfection