When you decide to go to court you always have to consider the costs involved. In many cases the assistance of a lawyer and a prosecutor is necessary. Depending on the trial, it may also be necessary to have an expert witness come to testify and make a report or you may have to request certain documents for which a fee has to be paid. All of these services entail costs that you have to bear.
It would be unfair if you have to go to court because the other party is in breach of their obligations and you have to bear all the costs involved. Or on the other hand, if you have to pay all the costs of your defence because someone has brought a case against you without you having done anything wrong. That is exactly why there is such a thing as an award of costs.
IN A COST ORDER, THE JUDGE DECIDES THAT THE DEFEATED PARTY MUST PAY THE COSTS OF THE OTHER PARTY.
Next, let’s see what costs can be claimed from the losing party.
Lawyer’s and prosecutor’s fees
The highest costs of the whole trial are usually the lawyer’s and prosecutor’s fees. These can be claimed in the award of costs in the following situations:
- The intervention of the lawyer and solicitor is mandatory because of the scope of the trial according to procedural law;
- The intervention of the lawyer is necessary because the trial is held in a place other than your home and therefore you will not be able to attend in person;
- The judge declares the losing party to be reckless.
The lawyer’s fees that can be claimed are not unlimited. In the award of costs you can claim attorney’s fees up to one third of the amount of the proceedings. This means that if you claim €6,000 in court, the maximum you can recover in attorney’s fees is €2,000, excluding VAT.
The only exception to this rule is that you can claim the full amount of the lawyer’s fees if the judge declares the losing party to be reckless.
Recklessness of the losing party
In the previous section we mentioned in two different situations the recklessness of the losing party. Recklessness means that the judge declares that the losing party is in bad faith.
The parties are obliged to act in good faith in court. If the judge considers that one of the parties is not acting in good faith (i.e. in bad faith), he can order him to pay all costs. This is a way of punishing the party’s conduct for doing acts that are simply intended to annoy the other party.
An example of bad faith or recklessness is the failure to respond to attempts to resolve the dispute out of court or refusing to attempt conciliation without any grounds.
Other expenses to claim
Other expenses that can be included in the assessment of costs are:
- Payment to make announcements or edicts for the proceedings;
- Deposits to be made for the proceedings. This includes court fees that in certain proceedings have to be paid in order for the judge to admit the proceedings for processing;
- Invoices of experts or other persons who intervene in the trial;
- Costs of reproducing documents which by law must be produced at the trial, unless the court itself requests them, in which case they will be free of charge;
- Fees for acts necessary for the course of the procedure.
Under no circumstances can expenses for documents or useless, superfluous or unauthorised actions be included. In other words, if you ask for documents and pay the costs for these, without these documents being necessary for the procedure, you cannot ask the party ordered to pay the costs. All costs must have a link to the proceedings.
In order for these expenses to be taken into account, they must be supported by invoices or receipts. It is therefore very important that you always keep all receipts and invoices that you receive during the proceedings. If you do not have the invoice or receipt – not just the proof of payment – it cannot be included in the assessment of costs.
Moment for the taxation of costs
The appraisal of costs is requested from the Legal Adviser of the Administration of Justice once the judgement has become final. This means that the time limit for appeal has expired, without the other party having lodged the required appeal. The time limit for appealing varies depending on the type of appeal you can lodge, but in general you can take into account a time limit of approximately one month from the date of the judgement.
The opposing party can challenge the assessment of costs on the grounds of undue or excessive costs. Therefore, the fact that the judge orders the losing party to pay the costs does not automatically mean that you will receive payment of all costs.
Do you have questions about the award of costs in your proceedings? Do not hesitate to contact our litigation department.
Selena Escandell Beutick