The fate of the success fee in the Russian judicial practice. Success Fee: Contemporary Russian Realities

Despite the fact that such a concept as a “success fee” has been actively used in practice in contractual relations for a number of years (introduced in the 1990s), disputes about the legality of such payments are still ongoing. Tax disputes related to the taxpayer's right to take into account the costs of paying the “success fee” are added to legal disputes (the possibility of collecting a “success fee” from the losing party).

By general rules, established by clause 2 of Art. 101 of the Arbitration Procedure Code of the Russian Federation, the costs of payment for the services of a representative incurred by the person in favor of whom the judicial act was adopted are recovered by the arbitration court from another person participating in the case, within reasonable limits.

Thus, the distribution of court costs between the parties is based on the principle of compensation by the right party at the expense of the wrong one.

To protect interests in court, the company has the right to involve outside lawyers, despite the presence of its own lawyers on the staff. As a rule, in-house lawyers of the company resolve disputes in labor, civil law. But when it is necessary to dispute tax penalties, there is a need to involve a lawyer specializing in tax disputes.

In such situations, companies enter into an agreement to provide legal services, in which the amount of remuneration depends on the outcome of the judicial battle.

Success Fee Concept

According to the prevailing jurisprudence“Success fee” means remuneration that is paid to the performer not for the work performed by him under the contract for the provision of legal services, but is made dependent on the adoption by the court of a specific judicial act, desirable for the customer.

For example, a contract repayable rendering services may contain next condition: the service will be paid in a certain amount if the customer is exempted from tax claims as a result of the consideration of the case. In the resolution of the Constitutional Court of the Russian Federation of January 23, 2007 No. 1-P, the “success fee” is defined as payment for a specific court decision, regardless of the amount of work that the contractor must perform under the contract.

Eligibility of payment of the "success fee"

As a general rule, under a contract for the provision of services for a fee (to which the contract for the provision of legal services belongs), the performer undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services (Article 779 of the Civil Code of the Russian Federation). In this case, the customer is obliged to pay for the services rendered to him within the time frame and in the manner specified in the contract (clause 1 of article 781 of the Civil Code of the Russian Federation).

At first glance, the norms of the Civil Code of the Russian Federation do not prohibit the parties to the transaction from linking the emergence of the obligation to pay remuneration to the performer to the outcome of the trial. However, the legal position of the highest judges proceeds from the inadmissibility of such conditions.

As already noted, the payment of the “success fee” depends on the outcome of the legal battle.

On the one hand, this condition of the contract is fair, since it stimulates the company's representative to win.

On the other hand, within the meaning of paragraph 1 of Art. 423 of the Civil Code of the Russian Federation contract fee for the provision of legal services, as well as for any reimbursable contract, is made for the performance of their duties (that is, regardless of the court verdict).

Analyzing the provisions of paragraph 1 of Art. 779 and clause 1 of Art. 781 of the Civil Code of the Russian Federation, the Constitutional Court of the Russian Federation (decree of January 23, 2007 No. 1-P) came to the conclusion that the subject of the contract for the provision of paid legal services is the performance of certain actions or the implementation of certain activities by the performer. Achievement of the result, for the sake of which a contract for the provision of services is concluded, is not included by the federal legislator in the concept of the subject of this contract.

Moreover, in the system of the current legal regulation the court decision cannot be the subject of any civil law contract (Article 432 of the Civil Code of the Russian Federation), therefore, the achievement of a positive result of the contractor's activity goes beyond the subject of regulation under the contract for the provision of legal services. In practice, this means that the inclusion in the text of the agreement on the provision of paid legal services a condition on the payment of remuneration, depending on the fact that a court decision is positive for the defendant, means the introduction of another subject of the agreement not provided for by law.

In 2015, the top judges formulated their position regarding the possibility of collecting a "success fee" from the losing party (definitions of the RF Armed Forces dated July 22, 2015 No. 240-PEC15, dated June 09, 2015 No. 307-ES15-6328, dated May 25, 2015 No. 302 -KG15-2312, dated 10.04.2015 No. 302-KG15-2312, dated 26.02.2015 No. 309-ES14-3167).

In the opinion of the RF Armed Forces, a “success fee” is a remuneration paid for the already rendered and paid services of representation in court in the event that they have led to the satisfaction of the stated requirements.

This payment is an additional one-time remuneration to a representative - a bonus for the successful outcome of the case ("success fee"), which is not directly related to the provision of legal services and representation in courts. The payment of this amount is tied to the outcome of the trial, namely, to the satisfaction of the customer's requirements at his request. The amount of this remuneration depends on the agreement reached by the parties for the provision of legal services, and therefore cannot be recovered as legal costs from the procedural opponent of the client, who is not a party to this agreement.

Despite the conclusions presented by the highest judges, arbitration courts interpret the legitimacy of such agreements and the possibility of subsequent collection of court costs from the losing party in the form of a “success fee” in different ways.

Let us analyze the established arbitration practice after the adoption of the legal position of the RF Armed Forces.

The payment of a "success fee" is illegal

Refusing to satisfy the right of the winning party to recover legal costs in terms of payment of the “success fee” to the representative, the courts proceed from the following:

1) the inclusion in the text of the contract on the provision of paid legal services a condition on the payment of remuneration, depending on the very fact of the adoption of a positive court decision for a party in the case, is at variance with the basic principles of civil legislation, which allow the parties to be free to determine any terms of the contract, if they do not contradict the legislation ( Clause 2, Article 1 of the Civil Code of the Russian Federation). Thus, the amount paid by the applicant as a bonus cannot be recognized as legal expenses due to the lack of connection with the specific actions of the representative (Resolution of the CA of the Ural District of 12.02.2016 No. A76-14717 / 2014, of the North-Western District of 21.01.2016 No. А56-18333 / 2015, Definition of the CA of the Sverdlovsk region dated 08.10.2015 No. А60-3421 / 2015);

2) the condition stipulated by the agreement, which made the payment for services rendered dependent on judicial acts, which will reduce the debtor's accounts payable, contradicts the essence of the obligation to provide paid services, and therefore is null and void by virtue of Art. 167 of the Civil Code of the Russian Federation, which does not generate legal consequences (Resolution of the CA of the North Caucasus District of February 20, 2016 No. A32-5921 / 2014);

3) no evidence has been presented to the court that the remuneration is reimbursement of expenses incurred by the contractor in connection with the consideration of the litigation (Resolution of the CA of the Central District of 05/29/2015 No. FA0-983 / 2015);

4) the claimed amount was not specified on the part of the applicant in the context of specific legal services, and its payment was made after the ruling by the court of cassation in favor of the company. The applicant did not submit any calculations confirming the reasonableness and validity of the indicated amount, its proportionality to the average prices for legal services prevailing in the region. The lawyer's arguments that his fee differs from the cost of the services of law firms in the upward direction due to the need to make deductions for the general needs of the Bar Association, to allocate funds for the maintenance of the corresponding bar association, as well as to pay mandatory insurance premiums and income tax in accordance with the Federal Law of 31.05.2002 No. 63-FZ "On advocacy and the legal profession in the Russian Federation", the court did not take into account. As the judges emphasized, the specifics of the activity of a person providing legal services is not a criterion for assessing the reasonableness of recovering court costs from a losing participant (Definition of the CA of the Novosibirsk Region dated 04.03.2016 No. A45-7879 / 2014);

5) in the case under consideration, the parties to the contract divided the amount paid for the actual services rendered and the amount of the bonus, the payment of which is dependent on a positive procedural result for the plaintiff, while the amount of the bonus cannot be recognized as legal costs (resolution of the Seventeenth Arbitration Court of Appeal from 03/23/2016 No. A50-4545 / 2014);

6) from the content of the contract it follows that the price of the contract is 10% of the amount specified in the act "On acceptance of work performed", the calculation is made at the end of the court proceedings. The result of such an agreement between the client and the representative cannot be recovered as legal costs from the procedural opponent of the client, who is not a party to the said agreement (definitions of the CA of the Tambov region dated 01.03.2016 No. A64-1618 / 2015, Khabarovsk Territory dated 26.02.2016 No. A73- 9930/2014).

The legality of the payment of the "success fee"

If the payment of the “success fee” is the only amount, the courts, in terms of reasonableness, satisfy it.

So, the court, having analyzed the contract, according to which the customer undertook to pay the contractor from the moment the decision entered into legal force the remuneration for the services rendered in the amount of 10% of the amount of the claims satisfied by the court, came to the conclusion that in this case the contractor's remuneration is made dependent from the positive result of the consideration of the case and is not due to the content of the work, which means that it is a "success fee". The result of such an agreement between the customer and the contractor cannot be recovered as legal costs from the procedural opponent of the customer who is not a party to the said agreement.

At the same time, the court, taking into account the above provisions and taking into account that the contract does not provide for other amounts to be paid to the representative for the rendered legal services, rightly pointed out the need to assign to the defendant part of the costs of paying for the representative's services within reasonable limits (decision of the AS Vostochno- Siberian District of 09.02.2016 No. A19-6769 / 2013).

The arbitration courts of the Moscow districts, satisfying the requirements for the recovery of the paid "success fee" from the losing party, proceeded from the following:

1) from the literal interpretation of paragraph 1 of Art. 779, paragraph 1 of Art. 781 of the Civil Code of the Russian Federation does not imply a general prohibition of conditions for paying for services for winning a case, but only limiting the possibilities for enforced recovery of costs for the payment of such remuneration from the losing party. In this case, the amount of remuneration is determined in a fixed amount and is not the discretion of the customer, but his obligation, which the company has fulfilled voluntarily and in full.

The fact that the services provided for by the contract were rendered by the contractor in full, and the company incurred expenses for the services of a representative in the amount of 4 million rubles, was confirmed during the consideration of the case. The terms of the agreement were actually fulfilled by the parties (Resolution of the CA of the Moscow District of July 29, 2015 No. F05-8658 / 2015);

2) deciding on the satisfaction of the claims and the collection from the losing party of the debt in the amount of 2 million rubles. (“Success fee”), the arbitration courts proceeded from the documentary confirmation by the plaintiff of the stated claims (Resolution of the AC of the Moscow District of March 17, 2016 No. A40-74291 / 2015);

3) the size of the "percentage of success" is calculated on the basis of the amount paid by the debtor in the framework of this case: 17 million rubles. × 5% = 883,000 rubles.

The applicant, in support of the reasonableness of the amount of the paid fee ("success fee"), presented as evidence a printout from the website of the law firms. From the presented it follows that in the city of Surgut there is a practice of paying an additional fee paid for the successful conduct of an arbitration case (“success fee”).

The amount of this fee varies greatly and ranges from 5 to 15% of the amount claimed.

Under these circumstances, the court concludes that the rate of the additional fee corresponds to the prevailing rates of legal services in the city of Surgut, the amount of the fee is determined according to the minimum fork, which indicates a reasonable and reasonable amount of the "percentage of success" paid by the applicant (Definition of the AS of Khanty-Mansiysk Autonomous Okrug dated 02.04 .2015 No. A75-3625 / 2014).

For the same reason, the court did not find it illegal to pay the “success fee” in the amount of 10% of the amounts actually recovered in the event of a positive trial (Definition of the AS of Khanty-Mansi Autonomous Okrug dated 18.03.2016 No. A75-9038 / 2010);

4) the legislation of the Russian Federation establishes the principle of freedom in the conclusion of contracts, including the provision of legal services. At the same time, the representative's fee depends on many factors, and the amount of remuneration cannot be limited by the minimum established rates for certain types of services. However, there are average tariffs for various types of legal services, which should be taken as a basis when analyzing the reasonableness of the amount of costs for the services of a representative on specific case... At the same time, if the total cost of the provided legal services significantly exceeds the average statistical value, the court cannot recognize it as reasonable and fair.

Thus, the costs of participation of a representative in court sessions are subject to collection for each day of the court session (including the preliminary court session, the court session continued after a break) and do not depend on the amount of time the session was held.

In this case, the conditions for the payment of the lawyer's remuneration were made dependent on the outcome of the court decision (recognition of the requirement to impose a court fine on the Ministry for failure to comply with the court decision).

The court made a decision to recover in full the court costs from the defendant (resolution of the Third Arbitration Court of Appeal dated February 24, 2016 No. A69-2060 / 2014);

5) for the provision of services, the customer (claimant) pays to the contractor monetary funds for the services actually rendered by the contractor, but not less than 50% of the amount to be recovered from the defendant by the decision of the arbitration court.

Since the person participating in the case cannot be limited in his right to conclude a contract for the provision of legal services, and the determination of the price of the contract is the prerogative of the parties to the contract, the only thing that is subject to assessment in matters of the distribution of court costs between the parties is the circumstances of expediency, reasonableness, as well as documents confirming the actual provision of services under the contract.

This wording of the terms of payment indicates that the parties did not agree on the terms of the price of the services to be provided, which does not exclude the possibility of determining their cost based on the volume of actually rendered services (Resolution of the Seventeenth Arbitration Court of Appeal dated February 26, 2016 No. A50-7069 / 2015).

In another case (the contract for the provision of services provided for remuneration for the work of the contractor in the amount of 10% of the amount recovered in court), the court recognized the signs of a "success fee" in the terms of the contract.

Nevertheless, the court assessed the reasonableness of the legal costs, based on the time spent by the representative, the duration of the proceedings, the complexity of the case, the amount of work performed, and also analyzed the cost of payment for the services of a representative in an arbitration court of three instances prevailing in the region. And proceeding from the principles of reasonableness and proportionality, the court concluded that the plaintiff's application was partially satisfied and that legal costs were collected for paying the representative's services (Resolution of the Twelfth Arbitration Court of Appeal dated 02.02.2016 No. A57-11898 / 2013).

Recognition of a “success fee” in tax expenditures

The legal nature of a contract for the provision of legal services with the condition of payment of a “success fee” leads to tax disputes regarding the recognition of the amounts paid in tax accounting.

Based on the legal position of the highest judges (Resolution of the Constitutional Court of the Russian Federation of January 23, 2007 No. 1-P, information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 29, 1999 No. 48 "On some issues of judicial practice arising in the consideration of disputes related to contracts for the provision of legal services" , Determination of the Armed Forces of the Russian Federation of February 26, 2015 No. 309-ES14-3167), the remuneration, the payment of which is due exclusively to the positive outcome of the trial for the customer (success fee), is not included in the customer's legal costs and cannot be attributed to the procedural opponent according to the rules of Art ... 110 APC RF.

At the same time, such payments were regarded by the supreme judges as bonuses to the customer.

And in most cases, when considering similar disputes, the judges refer to the position of the higher judges regarding the fact that the condition provided by the parties on the payment of remuneration to the performer is made dependent on the decision made by the court, and this goes beyond the scope of regulation under the contract for the provision of legal services. Payment of the amount is made dependent solely on the positive outcome of the consideration of the case, not due to the provision of new services other than those specified in the contract. The specified additional amount is essentially a remuneration paid for services already rendered and paid and only if the judicial act was adopted in favor of the applicant, that is, it is recognized as a kind of bonus payment to the representative (Resolution of the Third Arbitration Court of Appeal dated March 18, 2016 No. A33-18815 / 2015).

Such bonuses (for example, if the service is paid in the case when “the customer will be exempted from tax claims as a result of the consideration of the case”) cannot be recovered as legal costs from the procedural opponent of the client who is not a party to the agreement (Resolutions of the AC of the Volga District dated 03.03.2016 No. A65-20192 / 2014, East Siberian District dated 09.02.2016 No. A19-6769 / 2013, Urals District dated 24.12.2015 No. A50-9960 / 2012, Volgo-Vyatsky District dated 08.12.2015 No. A82- 8749/2013).

In one of the arbitration cases, the judges recognized the contract, in which the payment for legal services was made dependent on the adoption by the arbitration courts of a winning decision for the company, invalid. On the basis of the invalidity of the contract, the tax authorities denied the taxpayer the right to take into account the reduction tax base Income tax expenses incurred to pay the “success fee”. At the same time, the company's argument regarding the uniqueness of the case due to big size the price of the claim was rejected by the courts, since the scope of the actions performed does not depend on this circumstance. Neither the cost of the claim, nor the qualifications of the performer can justify the establishment of a "success fee" (Resolution of the AC of the Volga District of 23.01.2015 No. F06-19062 / 2013, by the Decision of the Armed Forces of the Russian Federation of 09.06.2015 No. 306-KG15-4120 remained in force).

It should be noted that there are no special provisions in tax legislation on what consequences an invalid transaction entails, and the recognition of a civil law transaction as invalid in itself cannot change tax legal relations.

As noted by a number of courts, the provisions of the Tax Code of the Russian Federation do not put the validity of the agreement as a basis for adjusting tax obligations for income tax (resolution of the Second Arbitration Court of Appeal dated February 25, 2016 No. -412/2015). Therefore, the recalculation of tax liabilities under a canceled transaction should be carried out only after the implementation of bilateral restitution, that is, the parties return to each other everything received under the transaction (Resolution of the CA of the Ural District dated October 21, 2015 No. A76-315 / 2015, Volga District dated December 29, 2014 No. F06- 18103/2013).

Based on the foregoing, it is risky to recognize such expenses in reducing the tax base for income tax (even if there are properly executed documents).

Accounting for claimed VAT

In the event that the company (or individual entrepreneur), with which the organization has concluded an agreement for the provision of legal services, is a VAT payer, the tax authorities may question the possibility of accepting the "input" VAT for deduction.

In practice, tax authorities often deny a taxpayer's right to deduct input VAT on services rendered, the costs of which are not recognized in tax accounting.

What arguments can be made in defense of the taxpayer's right to deduct input VAT in terms of legal services rendered containing a condition on the payment of a “success fee”?

According to general rules, the amounts of "input" VAT on purchased goods (works, services), property rights are accepted for deduction if the following conditions are simultaneously met:

1) goods, works, services, property rights were acquired for the implementation of VAT-taxable transactions (clause 2 of article 171 of the Tax Code of the Russian Federation);

2) goods, works, services, property rights are registered (clause 1 of article 172);

3) the presence of a properly executed invoice (clause 1 of article 172, clauses 5 and 6 of article 169 of the Tax Code of the Russian Federation).

Thus, in the list of mandatory conditions for accepting VAT for deduction, there is no requirement to record expenses for the purpose of calculating income tax in accordance with Chapter 25 of the Tax Code of the Russian Federation.

Nevertheless, the tax authorities relate the right to deduct VAT to the recognition of expenses in tax accounting.

What arguments do taxpayers use to defend their position?

The criteria for justifying expenses that reduce taxable profit, established by Art. 252 of the Tax Code of the Russian Federation, cannot serve as criteria for the validity of tax deductions for VAT, since the latter are established by Art. 171-172 of the Tax Code of the Russian Federation and are not regulated by the rules related to income tax.

Tax legislation does not bind the deduction of VAT amounts paid to suppliers of goods (works, services) with the attribution of the cost of purchased goods (works, services) to expenses that are taken into account when taxing profits. The economic feasibility of expenses for the acquisition of goods (works, services) has no legal significance when accepting VAT for deduction, since the right to tax deductions is not made dependent on the accounting of expenses that reduce taxable profit (decisions of the CA of the Republic of Buryatia dated 03.06.2015 No. A10-6158 / 2014, Oryol region dated 12.02.2015 No. A48-4708 / 2014, resolution of the Federal Antimonopoly Service of the Volga District dated 23.01.2013 No. A55-17744 / 2012).

In addition, by virtue of the provisions of Art. 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to conclude an agreement. The terms of the contract are determined at the discretion of the parties, unless the content of the relevant condition is prescribed by law or otherwise. legal acts, while the Federal Tax Service Inspectorate does not have the right to interfere with the normal economic activities of taxpayers who are subjects entrepreneurial activity, including by assessing the feasibility of using certain opportunities, and also does not have the right to assess economic feasibility actions of legal entities (decisions of the CA of the Ivanovo region of 09.12.2015 No. A17-4461 / 2015, of the Samara region of 25.11.2015 No. A55-18739 / 2015, resolutions of the FAS of the Volga District of 10.04.2014 No. A12-13984 / 2013 and of 02.04. 2014 No. A57-9787 / 2013). That is, in order to be eligible for VAT deductions, the above conditions must be met. At the same time, the documents together must reliably confirm the reality of transactions with which the Tax Code of the Russian Federation binds the taxpayer's right to receive tax refunds from the budget (Resolution of the CA of the North Caucasian District of October 16, 2015 No. A15-4194 / 2014).

At the same time, it should be borne in mind that the acts on the rendered legal services must contain all the mandatory details provided for by the Federal Law dated 06.12.2011 No. 402-FZ "On Accounting".

As noted by the high judges, the costs spent on payment for the services of representatives in a litigation must be confirmed by primary accounting documents, which make it possible to reliably establish the volume, cost and quantity of legal consulting services provided. Otherwise, the tax authority has legal grounds to charge the organization with additional VAT, taking into account the declarative nature of tax deductions for VAT (Definition of the RF Armed Forces dated October 29, 2014 No. 308-KG14-2792).

Another reason for the refusal to accept the "input" VAT for deduction is the recognition of the contract for the provision of legal services invalid. But as in the case of the adjustment of tax liabilities for income tax, which was mentioned above, the norms of the Tax Code of the Russian Federation do not put the validity of the agreement as one of the conditions for obtaining VAT deductions (Resolution of the Second Arbitration Court of Appeal dated February 25, 2016 No. A28-6295 / 2015, decision of the CA of the Krasnoyarsk Territory dated January 15, 2016 No. A33-412 / 2015). Therefore, as in the case of the adjustment of tax liabilities for income tax, the recalculation of tax liabilities for VAT on a canceled transaction should be carried out only after the implementation of bilateral restitution (Resolution of the CA of the Ural District dated October 21, 2015 No. A76-315 / 2015, Volga District dated December 29 .2014 No. F06-18103 / 2013).

Thus, taxpayers have good chance defend the right to accept the presented VAT for deduction in terms of the costs of paying for the services of the “success fee”.

Accounting

As already noted, legal costs include the costs of paying for the services of lawyers and other persons providing legal assistance (Articles 101 and 106 of the Arbitration Procedure Code of the Russian Federation).

In accounting, the costs of the services of lawyers, outside lawyers in connection with their participation in the trial are taken into account in the amounts awarded by the court or recognized by the debtor in the reporting period in which the court made a decision to collect them or they were recognized by the debtor.

According to clause 12 of PBU 10/99 "Organization expenses" (approved by order of the Ministry of Finance of Russia dated 06.05.99 No. 33n), court costs are reflected in the accounting records as non-operating expenses. To account for such expenses, account 91 "Other income and expenses", subaccount 91-2 "Other expenses" (Instructions for the use of the Chart of Accounts accounting financial and economic activities of organizations, approved. by order of the Ministry of Finance of Russia dated October 31, 2000 No. 94n, hereinafter referred to as the Instruction).

Debit 91-2 "Other expenses" Credit 76-5 "Settlements with various debtors and creditors", subaccount "Settlements with a legal company"

Litigation costs are reflected;

Debit 19-4 "VAT on purchased services" Credit 76-5 "Settlements with various debtors and creditors", subaccount "Settlements with a legal company"

The "input" VAT is taken into account.

Court costs incurred by the organization and recovered by the court are recognized as other income at the time the court decision comes into force (clause 7 of PBU 9/99 "Organization's Income", approved by order of the Ministry of Finance of Russia dated 06.05.99 No. 32n, letter of the Ministry of Finance of Russia dated December 23, 2004 No. 03-03-01-04 / 1/189).

We would like to remind that the party that won the court may recover from the losing party the costs of the services of a lawyer (representative).

But, as evidenced by the practice of arbitration cases, it is problematic to collect the “success fee” from the losing party (Clause 5 of the Review of Judicial Practice of the Armed Forces of the Russian Federation of June 26, 2016 No. 2).

Nevertheless, if the payment of the “success fee” is the only amount under the contract for the provision of legal services, the courts satisfy it within a reasonable limit (Resolution of the CA of the East Siberian District of 09.02.2016 No. A19-6769 / 2013).

In this case, to account for such income, account 91 "Other income and expenses", subaccount 91-1 "Other income" (Instructions to account 91) is used.

In accounting, the awarded amounts are subject to the following entries:

Debit 76-2 "Settlements on claims" Credit 91-1 "Other income"

The amounts of court costs awarded by the court (lawyer's services) are included in other income;

Debit 51 Credit 76-2 "Claims settlements"

Received on the account of the amount of court costs collected from the losing party.

Dear Colleagues!

I want to congratulate everyone on the good news.

02/18/2015 the determination of the Judicial Collegium for Economic Disputes of the Supreme Court took place Russian Federation on the cassation appeal of Maximova Maria Nikolaevna against the determination of the Arbitration Court of the Sverdlovsk Region dated 03/07/2014.

The dispute concerned the remuneration that Novolipetsk Metallurgical Plant OJSC paid to its representatives for winning the dispute over the claim of Maria Maksimova to recover damages from the company (case No. A60-11353 / 2013).

Maksimova M.N. applied to the Arbitration Court of the Sverdlovsk Region with a claim against the open joint-stock company "Novolipetsk Metallurgical Plant" for the recovery of 1,445,053,498 rubles. 47 kopecks losses (loss of profits) on the basis of paragraph 3 of Article 6 Federal law dated 26.12.1995 No. 208-FZ "On Joint Stock Companies". The decision of the Arbitration Court of the Sverdlovsk Region dated 03.06.2013, upheld by the decision of the Seventeenth Arbitration Court of Appeal dated 21.08.2013 and the decision of the Federal Arbitration Court of the Urals District dated 13.12.2013, refused to satisfy the stated requirements.

OJSC "Novolipetsk Metallurgical Plant" paid to its representatives over 5 million rubles, 3 million rubles. of which was the “success fee”.

The court of first instance collected from the plaintiff most of the declared “court costs”, including the “success fee”, reducing the amount recovered to 3.8 million rubles, which was supported in other instances as well.

The decisions of the lower courts regarding the amounts of the “success fee”, which amounted to 3 million rubles. The Supreme Court overturned.

But at the same time, the Judicial Collegium for Economic Disputes of the Supreme Court did not criticize the very fact of the legitimacy of the application of such a form of representation agreement as a "success fee"!

In my opinion, the Supreme Court made all the practicing judicial representatives happy.

In its ruling of 26.02.2015 in case No. А60-11353 / 2013, the Supreme Court did the following.

At first, confirmed that the “success fee” is an allowable part of the litigation agreement, which is a bonus. That is, he made its legitimization. In particular, the Supreme Court indicated that additional amounts (“success fee”) are essentially remuneration paid for services already rendered and paid for and only if they led to a refusal to satisfy the claim, that is, they are recognized as a kind of bonuses for lawyers. The amount of this premium depends on the agreement reached by the parties to the agreement for the provision of legal services.

Secondly, correlated the premium part of the fee ("success fee"), with the institution of legal costs. At the same time, the Supreme Court indicated that the result of the agreement between the client and the representative regarding the "success fee" cannot be recovered as legal costs from the client's procedural opponent, who is not a party to the said agreement.

Significant moment.

The Supreme Court ruling provides the text of the “success fee” clause in the contract.

Quote: “Clause 4.3 of the contract provides for the payment by the plant of remuneration to lawyers for a positive outcome of the consideration of the case in four courts: 1,500,000 rubles. for the first instance and 750,000 rubles. for the appeal, cassation and supervisory instance ”.

As we can see, the clause of the agreement on the "success fee" has a direct, unambiguous formulation that provides for the payment of remuneration precisely for a positive outcome of the consideration of the case, without any complex structures.

Thus, we can reasonably assume that by this decision the Supreme Court of the Russian Federation put an end to the endlessly arising discussions about the legality of the application of the “success fee”, saying “YES, rightfully”, and gave “ green light»The application of this form for determining the cost of judicial representation services.

As far as I understand, from now on, you can safely include in your agreements on legal representation clauses on "success fee" with clear and unambiguous wording.

The Supreme Court, by its ruling dated February 26, 2015, in case No. A60-11353 / 2013, legitimized the “success fee”.

I think that from this moment the courts will follow the position explained in the above definition.

In two words:“Success fee” is recognized as a kind of bonuses for court representatives. The amount of this premium depends on the agreement reached by the parties to the agreement for the provision of legal services. But, the result of the agreement between the client and the representative regarding the "success fee" cannot be recovered as legal costs from the procedural opponent.

Any participant in the trial is interested in his representative acting as efficiently as possible. The most obvious motivation for achieving a result is the material remuneration paid to a lawyer in case of success.

The question of the legality of the ban on the payment of interest or a fixed amount to a representative who won a difficult process was repeatedly raised before the Constitutional Court. The answer is so far negative, but the courts of different instances are not so unambiguous in their interpretations of the current legislation.

It is not uncommon for clients of law firms or bar associations to refuse to pay the resulting remuneration. Lawyers and attorneys regularly try to get a court decision in their favor, often successfully, but in the end one of the higher courts, as a rule, overturns all previous positive decisions.

In each specific case, the courts justify their decision in different ways, but the general meaning is the same.

Judges are independent and it is unlawful to make the amount of the fee dependent on the court decision, since in this way the court's decision ceases to be objective and impartial.

The ruling of the Constitutional Court of the Russian Federation of January 23, 2007 No. 1-P on two cases of the same type related to the non-payment of remuneration stipulated by the agreement to lawyers, renewed the discussion on the legality of such terms of the agreement. We are talking about the claim of LLC "Agency for corporate security" against the administration of the village "Voskhod" of the Istrinsky district of the Moscow region and the complaint of V.V. Makeeev. on the claim of the Moscow City Bar Association against the Administrative Department of the President of the Russian Federation.

Based on the materials of the case, the judges carried out "a check of the constitutionality of the provisions of paragraph 1 of Article 779 and paragraph 1 of Article 781 of the Civil Code of the Russian Federation."

Legal services, which include consulting, drafting documents, representation in courts and other government agencies, is one of the common types of services, the provision of which is regulated by Chapter 39 of the Civil Code of the Russian Federation. The corresponding agreement can be concluded both with a lawyer's education (Articles 20 and 25 of the Federal Law "On advocacy and the legal profession in the Russian Federation"), and with other entities that, according to the current legislation, are entitled to provide reimbursable legal services.

In accordance with paragraph 1 of Article 779 and paragraph 1 of Article 781 of the Civil Code of the Russian Federation, under an agreement for the provision of services for a fee, the performer undertakes, on the instructions of the customer, to provide services (to perform certain actions or carry out certain activities), and the customer undertakes to pay for the services rendered to him within the time frame and in the manner that specified in the contract for the provision of services for a fee.

The specifics of the contract for the provision of paid legal services, as noted in the Resolution of the Constitutional Court of the Russian Federation, in particular, is that “the performance of certain actions or the implementation of certain activities” is aimed at defending the interests of the client in courts and other state bodies. Therefore, the interests of the customer, often not limited to the provision of proper legal services by the contractor, are to achieve a positive result of his activities (satisfaction of a claim, complaint, obtaining another favorable decision), which goes beyond the subject of regulation under the contract.

In practice, as evidenced by, among other things, the materials of these cases, this leads to the inclusion in the contract of conditions according to which, when a positive decision is made in favor of the principal, the latter undertakes to pay the performer a certain amount, calculated as a percentage of the amount of the claim satisfied by the court, or in a fixed amount of money.

As noted in the decision, the constitutionality of the aforementioned legal provisions is contested by the applicant (a law firm), who was refused to recover from the administration of one village “Voskhod” of the Moscow Region by the decision of the Arbitration Court of the city of Moscow, upheld by the decision of the Federal Antimonopoly Service of Moscow Money... The remuneration was due to the contractor under the contract for the provision of paid services for representing the interests of the rural administration in the Arbitration Court of the Moscow Region when a decision was made in favor of the customer.

The Arbitration Court of the city of Moscow proceeded from the fact that the contractor's claim under the contract for the provision of compensated services for the payment of remuneration was not subject to satisfaction, if it is justified by the condition of the contract making the size and obligation of payment for services dependent on the decision of the court or state body, which will be adopted in the future.

A similar requirement is contained in the complaint of V.V. Makeeva. As follows from the materials submitted to the Constitutional Court of the Russian Federation, the Arbitration Court of the city of Moscow, by a decision of December 24, 2002, satisfied the claim of the Moscow City Bar Association against the Administrative Department of the President of the Russian Federation for the collection of debt for providing legal assistance under an agreement for the provision of services. The court involved lawyer V.V. as a third party in the case. Makeev, who was entrusted with legal services under the contract.

The ruling of the Constitutional Court of the Russian Federation states the following: “When putting before the Constitutional Court of the Russian Federation the issue of checking the constitutionality of the provisions of paragraph 1 of Article 779 and paragraph 1 of Article 781 of the Civil Code of the Russian Federation, the applicants, in essence, proceed from the fact that when providing legal services, payment is not only due to the actions themselves (activity) of the executor, but also that specific result, for the achievement of which the corresponding agreement is concluded, namely, the issuance of a court decision in favor of the applicant. "

The appellate instance canceled the initial court decision, recognizing the transaction as invalid in terms of remuneration for winning the case on the basis of Article 168 of the Civil Code of the Russian Federation and with reference to paragraph 1 of Article 779 and paragraph 1 of Article 781 of the Civil Code of the Russian Federation.

FAS MO, having considered the case on cassation, canceled the decision of the appellate instance, and upheld the decision of the court of first instance.

The Presidium of the Supreme Arbitration Court of the Russian Federation overturned the decision of the court of first instance and the ruling of the court of cassation and upheld the ruling of the court of appeal, stating that “the legal nature of relations arising from the contract for the provision of services for compensation does not imply the satisfaction of the contractor's claim for payment of remuneration, if this requirement is justified the condition of the contract, setting the size, as well as the obligation to pay for services, depending on the decision of the court or state body, which will be adopted in the future. "

The Decision of the Constitutional Court contains a legal analysis of the situation, which is characterized by the desire of the judges who voted for a decision to avoid specifics and a final decision not only on a specific dispute, but also on the merits of the problem as a whole.

The judges who made the decision indicated that public relations regarding the provision of legal assistance are interconnected with the implementation by the relevant subjects of the constitutional obligation of the state to ensure adequate guarantees of everyone's access to legal services and the possibility of attracting qualified legal professionals to everyone - that is why they embody in to itself a public interest, and the provision of legal services has a public law significance. It is noted that this conclusion of the Constitutional Court of the Russian Federation has been repeatedly confirmed in its decisions, in particular in relation to the activities of lawyers, who, in accordance with the Federal Law "On advocacy and the legal profession in the Russian Federation", are obliged to provide professional legal assistance to individuals and legal entities in order to protect their rights, freedoms and interests, as well as to ensure access to justice (Decree of December 23, 1999 N 18-P, Determination of December 21, 2000 N 282-O). Citing this argument, the judges of the Constitutional Court of the Russian Federation commented only on the activities of lawyers, but not lawyers in general. The Resolution gives detailed characteristic legal representation as a socially significant activity.

“Public principles in the nature of relations on the provision of legal aid are also conditioned by the fact that, arising in connection with the exercise of the right to judicial protection, they proceed in conjunction with the functioning of the institutions of the judiciary. Accordingly, the right to receive qualified legal assistance, acting as a guarantee for the protection of rights, freedoms and legitimate interests, is at the same time one of the prerequisites for the proper administration of justice, ensuring its adversarial nature and equality of the parties (Article 123, Part 3, of the Constitution of the Russian Federation). "

What exactly is the connection between public interests and the inability to use the freedom of contract is not fully specified. The judges noted that the freedom of contract is not absolute and is subject to restrictions to maintain a balance of interests.

“Freedom of contract also has objective limits, which are determined by the foundations of the constitutional order and public order. In particular, we are talking about the inadmissibility of extending contractual relations and the principles underlying them to those areas of social life that are associated with the implementation of state power. Since the bodies of state power and their officials ensure the exercise of their power by the people, their activities (both in themselves and their results) cannot be the subject of private law regulation, just as the implementation of civil rights and obligations cannot predetermine concrete solutions and actions of public authorities and officials ”.

Judge A.L. Kononov in his dissenting opinion, he disagreed with the arguments of his colleagues on the following grounds.

“Firstly, the subject has disappeared from the restriction concerning the consideration of only the sphere of legal services that is associated with the protection of the property (private law) interests of the customer, which made it possible to introduce and exaggerate public elements of legal assistance. Secondly, the applicants' complaints were not about any kind of remuneration, but only about that kind, which is determined as a percentage of the amount of the claim won - the so-called conditional fee, or the success fee, which is very important for a legal assessment. Finally, thirdly, the wording about the dependence of the amount of remuneration on the future court decision initially anticipates the erroneous conclusion that there is no connection between the quality of legal services provided and the achievement of a certain success in the judicial process of this activity. "

Claiming that the provision of legal services has public legal significance, the Constitutional Court of the Russian Federation relies on its position set out in Decree of December 23, 1999 N 18-P, which spoke about the public-law tasks of advocacy to ensure the protection of rights and freedoms, about their obligation in certain cases to participate in criminal proceedings by appointment or to carry out preferential or free legal service socially unprotected citizens.

According to Judge A.L. Kononov, the characterization of the public law side of the activities of lawyers in the said Resolution was needed by the Constitutional Court of the Russian Federation solely for the purpose of justifying the disproportionality of compulsory insurance payments and the need to take into account the costs of fulfilling the duties that the state imposed on lawyers, guaranteeing the right to receive qualified legal assistance in accordance with Article 48 of the Constitution of the Russian Federation.

In its earlier decisions, the Constitutional Court of the Russian Federation did not assert that any advocacy or the provision of legal services have public legal significance.

Judge A.L. Kononov did not agree with the opinion of the Constitutional Court of the Russian Federation on the inadmissibility of extending contractual relations and the principles underlying them to those areas of social life that are associated with the implementation of state power: “The categorical nature of such a statement raises serious doubts. And why, in fact, is unacceptable? Contract, agreement, conventions of various kinds - this is a normal and completely legal way of life, including the relationship between power, society and a person. The consent of the parties is also enshrined in many procedural rules and is the basis of many procedural decisions. Moreover, such a statement is difficult to translate into the context of the present case. The Constitutional Court of the Russian Federation does not seriously believe that the judicial authority is a direct participant or a party in the contract for the provision of legal services, and its decision is the subject of this contract, which, obviously, would lie outside the boundaries of legal reality. "

The judge also criticized the generally accepted and continued position of the Constitutional Court of the Russian Federation that reaching an agreement on the outcome of the case contradicts the fundamental principles of legal proceedings.

“... (it seems a delusion - approx.) The judgment of the contract to win the case as a bet, since it presupposes that the court's decision is rather arbitrary and predictable no more than a ball in a roulette wheel (but then this is a problem of the judicial, if not the legal system) ... The notion that this or that resolution of a property dispute by a court or other jurisdictional body has nothing to do with the position, efforts and participation in the process of a legal representative of the interests of a party under a legal services contract would contradict the purpose of the adversarial process principle (Article 123, Part 3, Constitution of the Russian Federation) and would make the very need for special legal assistance meaningless. It is the parties and their representatives, by virtue of the delimitation of procedural functions with the court, that are the active driving force of the adversarial process. A party takes the initiative to consider the case in court, bears the burden of forming evidence, presents its opinion on the facts, substantiates claims and objections, expresses an opinion on the assessment of the facts and the legal qualification of the dispute, actively defends its interests. "

The judge of the Constitutional Court of the Russian Federation N.S. Bondar also expressed his position on this controversial issue.

“The ambiguity of possible answers to the listed questions is due to the fact that the reasoning part of the Resolution does not see, at least with a sufficient degree of certainty, whether the final conclusion made by the Constitutional Court, contained in the operative part, indicates an absolute prohibition on the use under the conditions of the current Constitution of the Russian Federation. Federation of the institution of "success fee" or it is still allowed, at least under certain conditions, the introduction of this institution within the discretionary powers of the federal legislator. This problematicity, “non-obviousness” of the answer can hardly be regarded as an omission, gap or uncertainty in the system of argumentation and conclusions of the Constitutional Court. The main reason is different: the understatement, which is completely programmed in this part, was largely the result of a compromise reached in the development of the final decision between the supporters of the absolute prohibition of the "success fee", on the one hand, and those who proceeded from the fact that the conditional remuneration cannot be guaranteed by judicial protection, in particular, due to the current lack of special legislation on the procedure, conditions, legal guarantees for the proper exercise by a citizen of the right to qualified legal assistance, on the other. I also took the position of the second, softer (compromise) approach, which implies the need for additional clarifications about the possibility of implementing such an approach on the basis of the adopted Resolution ”.

It can be concluded that this court decision is an attempt by the Constitutional Court of the Russian Federation to find a "golden mean" between legal stereotypes and developing social relations. There is reason to believe that lawyers and advocates who have not received remuneration for their work will again try to prove the legitimacy of their claims. The contradictions and inconsistencies in the said Resolution of the Constitutional Court of the Russian Federation not only did not decrease, but vice versa.

In addition, remuneration for results achieved is the norm from the point of view of common sense, and payment “after the fact” is a fair and reasonable way out if it is impossible to determine the outcome of the process in advance. In a way, this proves the operation of the adversarial principle and objectivity of the court. If the decision on the case were expected, then there would be no transactions with such conditions. When all parties know the outcome in advance, the complexity and amount of work is easy to determine. In this case, the terms of the installment plan, the deferred payment are applicable, but payment in connection with a certain result indicates the uncertainty of the prospects for the process, the impossibility of influencing it and influencing the judges in any way.

At the same time, many lawyers argue that the remuneration clause is a tacit agreement that a lawyer or attorney will find a way to influence the court with the help of money or personal acquaintance. This position seems to be wrong. The risk of corruption and freedom of contract should not be confused. Simply put, rather than restrict the participants in civil legal relations in their choice and tell them which clauses to include in the agreement and which not, it is better to develop measures to counter bribery and "telephone law".

The question of the legality of including the “success fee” clause in the contract remains open. The Constitutional Court of the Russian Federation did not present a truly substantiated expert opinion on the problem, limiting itself to general phrases, indications of the principles and general meaning of the legislation. The gaps left in the decision, likely to postpone the final conclusion, will become a reason for new disputes and arguments for lawyers.

Dear Colleagues!

I want to congratulate everyone on the good news.

On February 18, 2015, the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation was determined on the cassation appeal of Maria Nikolaevna Maximova against the determination of the Arbitration Court of the Sverdlovsk Region dated 03/07/2014.

Maksimova M.N. applied to the Arbitration Court of the Sverdlovsk Region with a claim against the open joint-stock company "Novolipetsk Metallurgical Plant" for the recovery of 1,445,053,498 rubles. 47 kopecks losses (lost profits) on the basis of clause 3 of article 6 of the Federal Law dated 26.12.1995 No. 208-FZ “On Joint Stock Companies”. The decision of the Arbitration Court of the Sverdlovsk Region dated 03.06.2013, upheld by the decision of the Seventeenth Arbitration Court of Appeal dated 21.08.2013 and the decision of the Federal Arbitration Court of the Urals District dated 13.12.2013, refused to satisfy the stated requirements.

OJSC "Novolipetsk Metallurgical Plant" paid to its representatives over 5 million rubles, 3 million rubles. of which was the “success fee”.

The decisions of the lower courts regarding the amounts of the “success fee”, which amounted to 3 million rubles. The Supreme Court overturned.

In my opinion, the Supreme Court made all the practicing judicial representatives happy.

In its ruling of 26.02.2015 in case No. А60-11353 / 2013, the Supreme Court did the following.

Significant moment.

The Supreme Court ruling provides the text of the “success fee” clause in the contract.

Thus, we can reasonably assume that by this decision, the Supreme Court of the Russian Federation put an end to the endlessly arising discussions about the legality of the application of the “success fee”, saying “YES, rightfully so”, and gave the green light to the application of this form of determining the cost of services for legal representation.

As far as I understand, from now on, you can safely include in your agreements on legal representation clauses on "success fee" with clear and unambiguous wording.

The Supreme Court, by its ruling dated February 26, 2015, in case No. A60-11353 / 2013, legitimized the “success fee”.

I think that from this moment the courts will follow the position explained in the above definition.

A success fee is a fee that is often included in an attorney-client agreement. The essence of the success fee is that in the event of a positive outcome in the case, the client is obliged to pay the lawyer a certain fee in a fixed amount or as a percentage of the amount recovered by the court.

Since this remuneration can be quite substantial, in practice the question arose about attributing the success fee to court costs for legal services and the possibility of collecting them from the losing party.

The position of the Constitutional Court was expressed on this issue. In the decree of January 23, 2007 No. 1-P. In this resolution, the Constitutional Court formulated an approach according to which the inclusion of a “success fee” in the contract for the provision of legal services was actually prohibited. The Constitutional Court of the Russian Federation clarified that the subject of regulation of the contract for the provision of paid services includes only the provision of services, but not the achievement of a positive result. Consequently, the condition of the contract for the provision of legal services on the payment of remuneration, depending on the fact of a positive decision of the court, means the introduction of a different, not provided for by law, subject of the contract. Moreover, such a subject of an agreement is generally unacceptable, because a court decision cannot act as an object of anyone's civil rights, or a subject of an agreement. The implementation of civil rights and obligations cannot predetermine specific decisions and actions of public authorities and officials. Consequently, the establishment of remuneration for legal services, depending on the court decision, which will be adopted in the future, is at odds with the basic principles of civil law.

Based on the stated position of the Constitutional Court, the courts of general jurisdiction and arbitration courts generally refused to collect the success fee. As a result, the winning party could not recover from the losing opponent, as its legal costs, the “success fee” paid to the representatives.

Later, the Presidium of the Supreme Arbitration Court of the Russian Federation in its review No. 121 changed its opinion. He pointed out that remuneration, depending on the outcome of the case, can still be recovered as legal costs within reasonable limits (paragraph 6 of Review No. 121).

As a result, the jurisprudence split. Some courts began to charge a “success fee” if they thought it was reasonable. But other courts continued to automatically refuse to collect the “success fees” (without even assessing them from the point of view of the reasonableness of the limits), referring to the position of the RF Constitutional Court. The courts of general jurisdiction continue to refuse to recover the success fee.

Of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04.02.14 No. 16291/10) in order to uniformly apply the law in relation to the success fee, in fact, gave a new interpretation on this issue.

First, the Presidium of the Supreme Arbitration Court of the Russian Federation confirmed that the collection of the “success fee”, the receipt of which depends solely on the very fact of a positive decision in favor of the client, is contrary to public policy. But if the remuneration was provided not just for a positive decision of the court, but for the work of lawyers, as a result of which they managed to win the case, then this does not contradict public order. Conditional remuneration (like other legal costs) must be assessed by the court for reasonableness, as required by part 2 of Article 110 of the Arbitration Procedure Code of the Russian Federation.

Secondly, when resolving the issue of the reasonableness of legal costs, including the success fee, the court, in addition to checking the actual provision of legal services by the representative, is also entitled to assess the quality of the legal services provided. The Supreme Arbitration Court of the Russian Federation made it clear that the “success fee” can be considered as a bonus for lawyers by the client for successful and effective work.

Resolution No. 16291/10 allows, without contradicting the position of the Constitutional Court, to collect the “success fee” in certain cases. These are the cases when it can be proved that such a reward is not just a kind of "prize" that depends only on the outcome of the dispute resolution as such (almost winning in the sweepstakes), but an additional payment for those actual actions of lawyers that led to the win in court (when the case was not easy, it assumed several options for legal positions on it, and it is obvious that the court was ultimately guided by exactly the position that was developed and defended by the lawyers of the winning party.

In addition, Resolution No. 16291/10 provides for the possibility of paying a "success fee" as a "bonus", with which the client recognizes the highly professional work of lawyers in especially difficult cases (for example, lawyers manage to rectify the situation by taking up a case when it has already passed several hearings , and lead him to a win, despite the initial loss).

In other words, from Resolution No. 16291/10 it can be concluded that there is no presumption that if the case is won, then this is always the result effective work representatives (therefore, the gain in itself cannot determine additional reward). For the validity of the “success fee”, it is necessary to prove the fact that specific actions of lawyers led to the win and the additional remuneration was established in the contract as a reward for such actions.

The judicial practice of the courts of general jurisdiction regarding the collection of the success fee has not yet changed, but taking into account the unification of the higher courts and the above-mentioned determination of the Supreme Arbitration Court of the Russian Federation, it is hoped that the position of the courts of general jurisdiction will also change.

FREE CONSULTATIONS BY PHONE.