UKRAINE Law and Practice Contributed by: Oleksandr Mamunya, Ganna Prokhorova, Nataliia Badora and Ihor Kharytonov, Mamunya IP
8. Costs 8.1 Costs Before Filing a Lawsuit
8.2 Calculation of Court Fees The court fee for commencing proceedings is calculated depending on the nature of the demands in the claim. If the demands are monetary, the court fee is dependent on the amount of money (or the value of the property) claimed: 1.5% of that amount (value), but no less than approximately USD75 and no more than approximately USD26,000. If the demands are non-monetary (invalidation of a patent, termination of an infringement, order- ing to perform a certain action, etc), there is a fixed court fee per each non-monetary demand: approximately USD75. 8.3 Responsibility for Paying the Costs of Litigation The structure of litigation costs is detailed in 8.1 Costs before Filing a Lawsuit . In general, the liti- gation costs are paid by the losing party, or they are split proportionally if the claim is granted in part. Each party files a preliminary estimate of its costs with its first statement on the merits, else the court may deny recovery of all costs save for the court fees. The final amount of costs to be recovered is determined based on evidence (agreements, invoices, etc) provided before the parties’ closing arguments or no less than five days after the decision on the merits. In the determination of the final amount of costs to be recovered, the court considers relevance, proportionality, and reasonableness of costs, as well as the party’s positive or negative behaviour (abuse of its rights, attempts to settle the case before or during the trial, etc).
As per the procedural codes (Commercial and Civil), costs of litigation consist of the court fees, payable to the state budget for filing a lawsuit and certain motions, and litigation- related expenses. These comprise: • attorney’s fees, including fees for representa- tion before the court and other case-related legal services, in particular preparation of the case for consideration, collection of evidence, etc; • expenses related to the engagement of wit- nesses, experts, specialists and interpreters, as well as to forensic expert examination; • expenses related to requesting evidence from other persons, inspecting the evidence at its location and securing the evidence by the court; and • expenses related to other procedural actions necessary for consideration of the case or preparation thereto. Any litigation-related expenses from the above first three categories, except for forensic expert examination, can arise before filing a lawsuit. Aside from these, other costs arising before the lawsuit is filed can also be considered litigation- related expenses if they meet “the necessary for consideration of the case or preparation thereto” criterion. In view of the above, most of the recoverable costs arising before filing a lawsuit will be evi- dence-related. Costs for cease-and-desist let- ters may also be recovered, but this is open to challenge as they are not “necessary” for the case. Any pre-litigation legal analysis needs to be directly related to a specific lawsuit for its costs to be recoverable.
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