Initiating legal proceedings in France, whether to assert your rights or to defend yourself, inevitably raises the question of costs. Beyond the legal issues themselves, a legitimate and frequent concern relates to the final financial burden: who will ultimately bear the expenses generated by the lawsuit? French legal terminology often uses the term « depens » (recoverable court costs), but this concept, while central, does not cover all the sums involved. Another category of expenses, often substantial, known as « frais irrepetibles » (non-recoverable costs), follows different rules.

This article aims to shed light on these fundamental concepts of French civil procedure. We will define what « depens » are, explain who is generally required to pay them, and above all, clarify the essential distinction between these court costs and the other expenses governed by the well-known Article 700 of the French Code of Civil Procedure (Code de procedure civile). Understanding these mechanisms is an indispensable first step for anyone approaching litigation in France.

Depens: what are we talking about?

In the context of French judicial proceedings, « depens » refers to a specific set of costs directly related to the conduct of the trial and deemed by law to be necessary for the management of the proceedings or the enforcement of the decision. They can be thought of as the « official costs » of the procedure — those that are meticulously listed and whose reimbursement can be ordered by the judge.

What are these costs? The list is precisely established by Article 695 of the Code of Civil Procedure, but it notably includes:

  • Service of process fees (summons, notification of judgments, etc.) by a « commissaire de justice » (judicial enforcement officer — a profession that now encompasses the former « huissiers de justice » and « commissaires-priseurs judiciaires »).
  • The remuneration of court-appointed experts, but only where the expert has been designated by the court to inform its decision on a technical matter.
  • Compensation due to witnesses summoned to appear (travel expenses, accommodation, potential loss of earnings).
  • Certain duties and taxes levied by court registries or the tax authorities.
  • A very regulated and limited portion of the lawyer’s remuneration, corresponding mainly to former regulated procedural acts or to specific interventions such as in real estate seizure proceedings (saisie immobilière).
  • The « droit de plaidoirie » — a fixed contribution paid towards the lawyers’ pension scheme.

It is essential to understand that this list is exhaustive. Anything not included in it is not classified as « depens. » For example, if you decide to consult an expert on your own initiative to obtain a technical opinion before even bringing the matter to court, that expert’s fees will not form part of the depens.

The golden rule: the losing party pays costs (the principle of « succombance »)

The burning question is, of course: who pays these costs at the end? Article 696 of the Code of Civil Procedure sets out a guiding principle known as the « principe de succombance » (the costs-follow-the-event rule). The rule is simple in appearance: unless the judge decides otherwise by reasoned decision, it is the losing party that is ordered to pay the depens.

But what does « losing » mean in French law? To « succomber » means to fail in one’s principal claims — to have one’s claim dismissed by the court, or to be ordered to do or pay what the other party was requesting. The logic behind this rule is fairly intuitive: the party whose action or defence was unfounded is considered to have, in a sense, caused the costs of the proceedings. Whether by bringing a doomed action or by unjustifiably resisting a legitimate claim, they are presumed « responsible » for the costs generated by the dispute and must therefore bear them.

Let us take simple examples. If you sue someone for payment of an unpaid invoice and the judge rules entirely in your favour, your debtor will be ordered to pay you the invoice amount and the depens. Conversely, if you bring a claim against a neighbour over a property boundary issue and the court finds your claim entirely unfounded, you will bear the costs of the proceedings.

It is important to note that the judge generally applies this rule automatically (« d’office »), even if neither party has expressly requested it in their submissions. It is a legal consequence of losing the case.

Nuances and exceptions: when the judge may depart from the rule

As is often the case in law, the principle of ordering the losing party to pay costs has its exceptions. Article 696 itself provides that the judge may, by reasoned decision, order all or part of the costs to be borne by the other party. This means that, exceptionally, the party that « won » on the merits could be required to pay all or part of the depens.

Why such a departure? The judge must justify the decision. This can only be done for particular reasons, often related to fairness or to the parties’ conduct during the proceedings. For example, a party that wins on the merits but has unnecessarily complicated the procedure, multiplied dilatory incidents, or forced the other party into costly and avoidable steps, could be sanctioned by a partial or even total order to pay costs. Consider the sense of injustice if, despite being right on the merits, your opponent’s behaviour has forced you into disproportionate expenses: the judge has discretion to correct such situations.

Certain specific statutes also provide for derogatory regimes. Without going into excessive technical detail, one can cite certain divorce proceedings where the law designates in advance which spouse will bear the costs, unless the judge decides otherwise.

Finally, the judge may not rule on costs immediately. This is notably the case when the court renders an interlocutory decision (« avant dire droit »), for example to order an expert assessment. At that stage, the outcome of the dispute is not yet known. The judge may then decide to « reserve costs » (« reserver les depens »): this means the decision on the ultimate allocation of costs is deferred until the judgment on the merits.

The other category of expenses: « frais irrepetibles » under Article 700 CPC

Let us now address a fundamental aspect, often a source of misunderstanding and sometimes disappointment for litigants: not all expenses you may incur in the course of a lawsuit qualify as « depens » and will therefore not automatically follow the losing party. There exists a second, quite distinct category: the « frais irrepetibles » (non-recoverable costs).

What does this somewhat austere term mean? « Irrepetible » simply means that these costs are not, in principle, reimbursable by the opposing party under the costs order. The reason is straightforward: they do not appear in the exhaustive list set out in Article 695 of the Code of Civil Procedure. Yet they often represent a very significant portion — indeed the majority — of the total cost borne by the litigant.

What are these costs? The most common, and generally the most substantial, example concerns your lawyer’s fees. The work of advising, analysing the case, legal research, drafting written submissions (« conclusions »), preparing oral arguments, and the hearing itself — all of this is remunerated by fees freely agreed between you and your lawyer (under a fee agreement, or « convention d’honoraires »). Except for very specific cases involving the few remaining regulated fees, the bulk of this remuneration does not fall within the depens and constitutes non-recoverable costs.

Similarly, if you decide to engage a private expert, a technical consultant, or have specific observations drawn up by a judicial enforcement officer without the court having ordered it, the associated costs will be treated as frais irrepetibles.

The direct consequence is significant: even if you win your case and your opponent is ordered to pay the depens, these non-recoverable costs remain, in principle, at your expense. This can be a difficult reality to accept when you have invested time, energy, and financial resources in a dispute from which you emerge victorious.

So what can be done about these significant costs? The legislature has provided a mechanism to seek at least partial reimbursement: Article 700 of the Code of Civil Procedure. This article allows a party (generally the winning party who is not ordered to pay costs) to ask the judge to order the other party to pay a lump sum intended to cover all or part of these non-recoverable costs.

The judge has broad discretion here. There is no obligation to award the full amount claimed under Article 700. The court will decide having regard to fairness (whether it would be just or unjust to leave these costs with one or the other party) and to the financial situation of the party that would be ordered to pay. The judge may therefore award a sum lower than the costs actually incurred, or even refuse any award under Article 700 altogether.

Clearly distinguishing between depens (listed in Article 695, paid by the loser subject to exceptions) and frais irrepetibles (the majority of costs, notably lawyer’s fees, partially recoverable at the judge’s discretion via Article 700) is therefore absolutely essential for anyone contemplating or facing court proceedings in France. This allows for a more realistic assessment of the financial stakes and the sums that can realistically be expected to be recovered at the end of the trial.

For a personalised analysis of the potential costs related to your situation and the possibilities for recovery, our team is at your disposal.

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