How much does a lawsuit really cost? Behind this question lies a little-known but essential legal mechanism: the costs tax. This system protects litigants against excessive claims by court officers and enables them to obtain reimbursement of costs incurred.
Definition and origin of the tax
The word "tax" comes from the Greek Tassein (to put away, to fix), which in Latin became Taxare. In the legal context, it refers to the judge's decision setting the amount of legal costs to be paid by the losing party.
This procedure is only used if there is disagreement over the amount of the costs. Voluntary payment eliminates the need for a judge to intervene.
The principle of free justice and its limits
Free justice, proclaimed in 1789, remains a fundamental but incomplete principle. The decrees of 4, 6, 7 and 8 August 1789 stipulated that "The venality of judicial and municipal offices is abolished from this moment. Justice will be dispensed free of charge"..
At present, only the operating costs of the public justice service are covered by the State. Litigants must pay all other costs in advance:
- Lawyers' fees
- Bailiffs' fees
- Expert fees
- Translation costs
Law no. 2011-900 of 29 July 2011 introduced a legal aid contribution of €35, but this was abolished on 1 January 2014.
The purpose and subsidiary nature of the tax
The tax has two main objectives:
- Protecting litigants against excessive claims by court officers
- Provide a writ of execution to recover the costs advanced
This procedure is not compulsory. The customer may accept the sums claimed and pay voluntarily.
Definition of costs and distinction from other costs
Article 695 of the Code of Civil Procedure sets out a restrictive list of costs, including in particular :
- Fees and charges levied by court registries
- Translation and interpreting costs
- Witness fees
- Remuneration of experts and technicians
- Tariffed disbursements
- Emoluments of ministerial public officers
Costs are limited to disbursements relating to legal proceedings. They do not include
- The fees of a technician not appointed by the judge
- The costs of a bailiff's report not issued by the judicial authority
- Fees paid for legal advice
Sometimes, costs incurred prior to the proceedings may be included in the costs if they have "a close and necessary relationship" with the proceedings (Req. 1 Feb. 1893, DP 1894).
The procedure for prior verification by the registry
Verification of costs is a mandatory prerequisite for any application for a fee. The court clerk verifies the amount of the costs and makes the necessary adjustments to bring the account into line with the tariffs.
This administrative stage has several characteristics:
Territorial jurisdiction Claims are brought before the court where the costs were incurred (article 52 of the Code of Civil Procedure).
Presentation of the request No particular form for the parties, but accompanied by a detailed account for the court officers.
Verification certificate After checking, the court clerk issues a certificate that has no judicial nature (Civ. 2e, 19 Nov. 2009).
Certificate notification The pursuing party notifies the adversary of the audited account, which implies acceptance of the account (article 706 of the CPC). This notification must mention the one-month time limit for challenges.
If there is no dispute within this period, the certificate becomes an enforceable title.
Contesting the verification certificate
The challenge opens the contentious phase of the tax procedure. It may be lodged by the person requesting the audit, the defendant or the court-appointed agent.
Form of challenge :
- Formulated in writing or orally (declaration to the registry)
- Motivated and accompanied by the contested certificate
- Without mandatory representation
Expertise The application must be sent to the registry of the court that checked the costs.
The litigation procedure and the tax order
The taxing judge (president of the court or delegated magistrate) rules on the dispute in an adversarial procedure.
Contradictory nature The judge takes observations from the parties, with the possibility of a hearing. Case law now requires all parties to be heard (Civ. 2e, 4 Jan. 2006).
Powers of the judge :
- Rulings on tax applications and other collection requests
- Makes the necessary adjustments on its own initiative
- Can reject frustrating or unjustified charges
As the Court of Cassation has stated: "the judge does not have to refer the parties back to the court clerk to draw up a new verification certificate and must set the amount of costs and fees himself". (Civ. 2e, 18 Jan. 2007).
The tax order is enforceable and notified to the parties.
Appeals against tax orders
A tax order issued by the president of a court of first instance may be challenged before the first president of the court of appeal.
Time limit and effect One month from notification, with no increase in distance. The time limit and the exercise of the right of appeal suspend execution.
Form of appeal Notice of appeal: A memorandum setting out the reasons for the appeal is delivered or sent to the Court of Appeal Registry. A copy of this memorandum must be sent simultaneously to all the parties, failing which it will be inadmissible.
Audience The parties shall be summoned fifteen days in advance and heard by both parties.
Sovereign assessment The First President has sovereign discretion to rule on the appeal, subject to the correct application of the tariffs.
Scrupulous compliance with these formalities is essential. The Court of Cassation regularly censures decisions that disregard these rules, as illustrated by the judgment of 11 March 1992 (Civ. 2e, no. 89-20.584) concerning failure to comply with the notice period.
Disputes over costs can quickly become technical and risky. A specialist lawyer can provide the expertise you need to safeguard your rights and optimise the recovery of your legal costs.
Sources
- Code of Civil Procedure, articles 52, 695 to 718
- Law no. 77-1468 of 30 September 1977 on free access to justice
- Decree no. 78-62 of 20 January 1978
- Civ. 2e, 14 Dec. 1992, no. 91-16.515, Bull. civ. II, no. 317
- Civ. 2e, 4 Jan. 2006, no. 04-14.080, Bull. civ. II, no. 4
- Civ. 2e, 18 Jan. 2007, no. 05-21.415 and 05-21.513, Bull. civ. II, no. 12
- "FAIT Taxe.pdf", Répertoire de procédure civile, Michel REDON, February 2024
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