Court fees in commercial dispute resolution in Ukraine: how not to overpay?

The High Commercial Court of Ukraine provided a number of recommendations regarding procedure of court fee imposition in Ukraine by pointing out some aspects which can help to safe money when filing a lawsuit (petition). In particular resolution of the Plenum of the High Commercial Court of Ukraine dated 21.02.2013 clarified issues which often cause difficulties in practice: definition of dispute category (property/ non-property related disputes), payment of court fee for interlocutory injunction, exemption from payment of court fee.

The first interesting aspect should be taken into consideration when one makes preparations related to payment of a court fee. It deals with choice between lists provided by the Law “On court fee” that are subject to extended interpretation:

• List of cases when the court fee is not paid (Section 2 of Article 3 of the Law);
• List which provides payment of the court fee (Subsection 2 and 4 of Section 4 of Article 4 of the Law).

The High Commercial Court of Ukraine reached the conclusion that imposition of court fees for petitions (complaints) that are filed to court and are omitted in Article 4 of the Law is not performed. It is not performed even if the mentioned Section 2 of Article 3 of the Law omits such imposition. In other words unless the Law directly provides requirement to pay or ability to be exempted from payment of the fee it is not required to pay it.

Special attention should be paid to the requirement about court fee payment for filing of lawsuit interlocutory injunction petition or evidence interlocutory injunction petition. Upon introduction of fee for these petitions filing (1.5 minimum wages) many claimants refused to apply this mechanism of influence on defendants. At the same time Section 2 of Article 6 of the Law provides that the amount of court fee for lawsuit filing is decreased by the amount which was paid for filing of lawsuit interlocutory injunction petition or evidence interlocutory injunction petition. In other words a claimant does not have to bear additional expenses since the fee for such petitions filing equals to the minimal court fee, thus such petition can be filed additionally in any case.

The High Commercial Court of Ukraine points out to the fact that the decrease of court fee amount for lawsuit filing is possible on condition that lawsuit interlocutory injunction petition or evidence interlocutory injunction petition is filed prior to the lawsuit filing or along with such. If it is filed afterwards – then there is no discount. At the same time it is required to attach original of a document about court fee payment for petitions because otherwise the lawsuit will be accepted.

Also it was clarified that if the amount of court fee that is paid for lawsuit filing is less than the amount of court fee paid for filing of the abovementioned petitions then the decrease of court fee amount is not applied. However the court did not clarify what is to be done if the amount is equal. It is crucial because in such case it will also be impossible to provide a document about payment of court fee. Apparently this fact will have to be specified either in a lawsuit or in a separate petition.

If a commercial court considered and declined lawsuit interlocutory injunction petition or evidence interlocutory injunction petition, then other petitions regarding same matters will require payment of court fee based on general grounds. Use of primary document about the court fee payment for this purpose is not allowed.

At the same time if the document about payment of the court fee is not attached to lawsuit interlocutory injunction petition, then the court is obligated to consider such petition. This is due to the fact that the Code of Commercial Procedure of Ukraine does not provide opportunity of such petition rejection by a commercial court based on failure to pay the court fee. In such situation a decision about division of court fees is made based on general grounds along with the proceedings related decision.

It is worth to pay special attention to clarifications of the High Commercial Court of Ukraine regarding distinction of property and no-property related claims. In particular it is emphasized that the court fee in cases related to recognition of ownership to property, vindication or return of property is imposed based on the price of dispute related property, same as in property disputes. At the same time when filing a lawsuit without claims for restitution, the court fee is paid based on rates provided for non-property related lawsuits.

In general such clarifications of the High Commercial Court of Ukraine are useful for business entities since many aspects, when handled by professional lawyers, can help to save money on court proceedings that are expensive even by themselves.

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