It often happens that a client decides to litigate with the firm belief that the winning litigant will recover the attorney fees and costs involved in the case from the other party, “losing party”. But is it true? The short answer is “sometimes, but almost always when you win”. We state “almost always” because it is becoming more common that when even winning a case, there is no guarantee that attorney fees can be recovered.
The basic principle is that each litigant has got the obligation to pay the costs and attorney fees related to his/her defence. At the end of the proceedings, the final judgment will include a decision relating to the fees. This is to say that in Spain each litigant pays his own fees unless otherwise provided by a judgment. If there is no clear decision taken by the judge, this would mean that each litigant would pay the fees and costs incurred. This matter can become a major problem if this hasn’t been clarified with the client before starting the Action.
But even if there is a judgment regarding this topic, how are they determined?
Normally, the judgment just states which litigant will have to pay for the fees and the costs involved with the whole case, but doesn’t decide the total amount. Once the Judgment is concluded, the party interested in recovering the fees will have to present at court an “extraordinary” incident called “incidente de tasación de costas”. This means that the court’s secretary will determine the total amount to be paid. For that purpose the receiving party will have to present the attorney`s invoice with the services rendered together with the costs involved in the case. It is Important to know that the invoice to be presented will have to be prepared according to the “criteria of fees” approved by the Lawyer Bar Association and not according to the fees paid by each client to his/her attorney. This means that a client can agree on an amount for attorney fees that cannot be totally recovered from the opponent (if the amount agreed on with the client exceeds the amount prescribed by the Bar Association if the criteria is established)
As usual in every jurisdiction, there are some exceptions to the general rule. In Spain, for example in cases against Public Administration, the judge has got the power to determine who will have to pay the attorney fees including the total amount.
In any case, experience shows that the question relating to attorney fees should be clarified from the first moment to avoid misunderstandings with the client later in the proceedings.
Elena Bello Cárdenes – Dr. Frühbeck Abogados Gran Canaria