"In Europe the Losing Party Pays Court Costs". What are Court Costs?

Factual Questions
1

My understanding is that in civil cases, the losing party pays court costs in both Britain and France. I also understand that this is not the case in the US.

I assume “court costs” include costs incurred by the state. Do they include the attorney’s fees by the winning party? How is that negotiated?

What is the ratio of state-incurred costs to private costs (in a civil context)?

I’ve heard that the loser pays courts costs “up to a reasonable amount” in France. Is that correct? How is “reasonable” determined?

Further description of how various countries allocate legal expenses among various parties would also be of interest.

<<BTW, it is claimed that assigning court costs to the losing party would be an appropriate form of tort reform in the US. Perhaps (or not), but that’s grist for another forum.>>

2

The following is what I have gathered (as an interested nonlawyer German citizen) about German court cost:

Court cost consist of

  • a court fee depending on the value of the suit (the value of the thing concerned/the sum sought by the plaintiff; if the suit is about something of undefined monetary value the court assesses a value of the suit).
  • the parties’ lawyer fees (there are regulated schedules of fees for the basic types of legal representation; a party can choose to use more expensive representation but does not get reimbursed the extra cost if the suit is won)
  • if witnesses or expert witnesses are used: actual amount of witnesses’ travel reimbursement and expert witnesses’ fees.

German court cost calculator applet (German-language; requires Java)

Translation of the fields and check boxes:
Streitwert = value of the suit (in euros)
Kläger hat Anwalt = plaintiff is represented by lawyer
Beklagter hat Anwalt = defendant is represented by lawyer

  • 10% = (apply reduction by 10 % for cases tried in former East Germany)
    Berufung = appeal (i.e. calculate court cost for the second trial)
    mit Beweisaufnahme = with evidence phase (i.e. court hears witnesses)
    Beweisauslagen = actual cost for witnesses/expert witnesses’ reimbursement

Translation of terms in the output field:
Anwaltsgebühren = lawyers’ fees
Auslagenpauschalen = flat sum for expenses
MWSt = Value Added Tax
Gerichtsgebühren = court fees
Zeugen und Sachverst. = cost for witnesses and expert witnesses
Gesamtkosten = total court cost

Once again, IANAL, and this is not legal advice.

3

Actually in many (most? all?) U.S. jurisdictions, the losing party can be charged with costs, which can include filing fees and other expenses (but not attorney fees). It’s not much compared to attorney fees, but it’s something. Frequently the losing party will waive his or her right to appeal in exchange for the winning party waiving costs.

4

As far as I know, court costs payable by the losing party in a civil action are pretty much standard in most common law countries. I appreciate that some costs are available in the U.S., as lucwarm posts, but my understanding is that the amount of costs in American courts aren’t as extensive as in other common law systems - but I’m open to being told otherwise. I believe they’re also standard in most civil law systems, but I’m not as sure about that.

Here in Canada, the court issues a “tariff of costs” that lists in detail the standard amount of costs for particular steps in a lawsuit: filing a claim, filing a defence, having a lawyer appear on a chambers matter, etc. Those items are usuallly cross-referenced to the cost of the amount in litigation, so the greater the amount in issue, the greater amount the tariff will allow for each procedural step.

Once the case is determined, the winning side prepares a “bill of costs” - a para-legal, secretary or articling student in the office goes through the file and lists everything that’s happened that is eligible for costs under the tariff. They send that bill to the losing side. The losing side usually dickers a bit about some of the items in the bill (“Hey, John, that chambers appearance last January wasn’t contested, remember? We agreed to adjourn it, so you can’t claim it as a contested motion, just a chambers appearance”) and so on. Usually after a bit of dickering, the lawyers for the two sides can agree on the amount. If they can’t agree, then they apply to the court to have the local registrar tax the bill - go through it item by item and rule on each item.

Once the amount of the bill of costs is set, either by consent or by taxation, the losing client pays that amount to his/her lawyer, who transfers it to the successful law firm, which then applies the amount recovered as costs against the amount their client owes them for their services. (note: this is not a contingency fee - that’s a different breed of cat.)

In the Canadian system, costs don’t normally cover the entire cost of the winning side’s bill, but they can nonetheless be a substantial sum. (The last bill of costs I did for a contested chambers motion in the Supreme Court came to just under $1000 CAN, which came nowhere close to covering the actual amount of work we put into it.)

Paying costs on the tariff is called “party and party costs.” There can be rare cases where the court orders “solicitor and client costs” - i.e. - the losing party pays the full bill for the winning party, not just the amounts allowed by the tariff. “Solicitor & client costs” are usually used as a means to discipline the unsuccessful party, for abusing the system in some way.

Also in rare cases, where the court thinks that the lawyer has acted improperly (e.g. - going ahead with a patently frivolous motion), the court can order that the lawyer pay the other side’s costs personally, without being able to claim them from his own client.

Back in the days of Wildest Bill, the lack of court costs was one of his pet peeves about the U.S. court system. I posted a lengthy bit about the way court costs work in Canada on one of his threads, which you can access here.

flowbark, I’m not sure what you mean by “state-incurred costs” - in a typical civil action, it’s between two private parties, so the government doesn’t have any costs. The court rules may require that the parties pay a deposit on certain services provided by the court system, but that’s to ensure the court gets paid by the party. For example, if I order up a transcript from a month long trial so I can appeal the decision, the court transcript service will normally ask for a deposit, just like any other business/service. That deposit gets applied to the cost of the transcript. If I’m ultimately successful on the appeal, I would be able to claim the cost of the transcript from the other side as a court cost.

5

You’re right. While, as lucwarm notes, U.S. winners can often get filing fees, docketing fees, and other incidentals, as a general rule you can’t get the loser to pay for your attorneys as you could in the UK and other Commonwealth countries. Of course, lawyer’s fees are typically of vastly greater amount than such incidental expenses.

There is something of a trend towards more liberal fee-shifting in U.S. courts, but it’s still not very common in most jurisdictions. Many jurisdictions do allow a limited attorneys fee when a case or motion is not merely a loser but frivolous. Relatedly, the Equal Access to Justice Act (5 USC 504) requires that in some circumstances when the U.S. loses a civil case case it must pay attorneys fees unless the U.S. position was “substantially justified.”

–Cliffy

6

Just for the record, the Australian system is pretty much the same as the Canadian system. There are differences, but they are not sufficiently fundamental as to be worth mentioning to people who are not going to have to prepare a Bill of Costs in Taxable Form (am I glad I have staff to do that for me? Yes. I. Am.)

Generally, recoverable costs work out at around 2/3 of actual costs, although at least in my jurisdiction the gap is widening.

The costs you recover do include outlays on filing fees, hearing fees, experts fees etc (assuming they were reasonably incurred and pass the taxing officers gimlet eyed scrutiny).

7

For France you can find the legal system in art. 695-700 Nouveau Code de Procedure Civile (English translation (warning: long)).

clairobscur is AFAIK the only Doper who can with authority explain this, so hopefully he will drop by.

The Dutch system - which AFAIK is very similar to the French and Belgian system - is that the loser generally has to pay ‘costs of procedure’ to the other party. These consist of two separate parts:

  • court costs
  • salary costs incurred by the other party.

Court costs are fixed costs, set by the court, that have to be paid in advance by both parties if they participate in the procedure. The amuont depends on the kind of procedure and the value of the claim. The loser in this was has to pay the court costs of the winner as well. These costs do not normally cover the full costs that the State makes for facilitating the procedure; they serve more as kind of a deterrent for frivolous lawsuits.

Court costs also include several sundry items (fee of the process server and the like).

Salary costs are not actual salary costs. The costs to be payed are calculated by a point system. Each action in the procedure is worth a number of points. The number of points is multiplied by a specific value (related to the kind of procedure and value of the claim). The result is the salary costs the loser has to pay.