According to art. 451 par. 2 of the Code of Civil Procedure, even without a party’s request and based on a set of reasons, judges are entitled to reduce the lawyers’ fees where it is found that it is disproportionate against the value or complexity of the case or to the work of the lawyer and considering the circumstances of the case.
In assessing the amount of the fee, the court must consider both the amount of the claim and the proportionality of the fee with the amount of work involved in the preparation of the defence in question, determined by elements such as the complexity, difficulty or novelty of the dispute.
At the same time, the practice of the European Court of Human Rights in this matter states that the party who won the trial will not be able to obtain reimbursement of expenses except to the extent that their reality, necessity and reasonableness are established. (Maria Costin v. Romania, Stran v. Romania, Stere and Others v. Romania, Raicu v. Romania).
The ECHR’s case-law is relevant in the light of the principle that is derived from it, namely that the costs incurred in the proceedings are to be recovered by the successful party only to the extent that they constitute necessary, real and reasonable expenses.
The proportionality of the lawyer’s fee with the value or complexity of the case and the work done by the lawyer is a matter of solidity, left to the court’s discretion, matter justifying the decrease of the lawyer’s fee so that it reflects the value of the work done by the defence counsel during the litigation.
By decreasing the amount of the lawyer’s fee imposed on the party who lost the case, the court does not intervene in the legal assistance contract between the lawyer and the client and does not amend it to reduce the amount agreed as a fee, but merely assesses to what extent the party’s fee who has won the trial must be paid by the party who is at fault.
The provisions of art. 451 par. (2) The Civil Procedure Code also has the purpose of sanctioning the abusive exercise of the right to claim damages, through an agreement between the lawyer and the client on fees clearly disproportionate to the amount, difficulty of the dispute or the amount of work involved in the preparation of the defence.
As expressed above is also the Decision no. 401/2005 issued by the Constitutional Court by which the objection of unconstitutionality of art. 451, par. 2 New Code of Civil Procedure (former Article 274, paragraph 3 Civil Procedure Code) was dismissed.
The Court notes that the fault of one party is the basis for awarding costs to the party who has won the case, including the amount of money paid to the lawyer as a lawyer’s fee, which shows that the contract concluded by the party that won the trial with his lawyer will also have an effect on the party who lost the case because the latter appears to be bound by the will of the persons who signed and negotiated the fee in the legal assistance contract.
By reducing the amount of the lawyer’s fees, there is nothing more than sanctioning the abusive conduct of the parties in the legal assistance contract.
The Supreme Court ruled that the right to a fair trial must be ensured to all parties to the proceedings, so that the amount paid for a lawyer’s service should not overburden one of the parties who agreed to bring an action. In that case, the Supreme Court held that, the fact that one of the parties paid a lawyer fee in an amount proportional to the value of the Claim does not mean that the dispute is of a high degree of difficulty and should not be reflected on the opposing party which, acted did according to the law, calling the Defendant in court. (Decision No. 866 of 12 April 2016 Supreme Court)
As regards the analysis of the amount of the lawyer’s fees, the provisions of art. 1, paragraph 1 in conjunction with art. 3, paragraph 1, letter c) but also with art. 6 of the Law no. 70/2015 for the financial discipline regarding cash payments, which stipulates that the lawyers can receipt cash up to a daily ceiling of 5,000 lei / person and no more than a total amount of 10,000 Euro / day.
Any collection over the above-mentioned limits places us under the frame of a tort sanctioned by the provisions of Law no. 70/2015.
Therefore, the court must consider the award of costs by reference to the complexity of the case, the time and volume of work, the importance of the interests in question, the reputation and lawyer’s specialization, the time constraints on which the lawyer is bound by the circumstances of the case to act to provide performant legal services.
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Ana-Maria Alexandru
