Compensatory costs

The foundation of the centuries-old, European Civic Action Conflict is that the losing party has to pay everything – not only the fees of his own legal representative and the court costs but also the compensation of the practice expenses from the opposing side, among others in the form of their legal costs. So those who unjustifiably drag others into a dispute should (as a kind of compensation for damages) cover all of their costs.

The lawyer’s personal relationship to his own clients (under private law) is dominated by the elementary principle of the freedom of contract, even in questions of payment. Unlike this, when the winning party’s costs are compensated by the losing party in judicial court cases, the relationship which exists is external and under public law. In this case abstract criteria have to be found which enable a neutral judge to quantify them. The state empowers the decisions of its courts with legal force and the resulting effects of enforceability. This does not only interfere with the obligor’s assets but also, under certain circumstances interferes with his freedom. Furthermore it has the consequence that even enforceable cost-sections comply with the claim of justice.

The system of compensatory costs in a lawsuit, developed by lawgivers under this requirement throughout the centuries is very detailed and therefore not always entirely straightforward. It should thus guarantee the fairness of fees to the greatest degree possible. The criticism of the lack of comprehensiveness of the lawyer’s tariff system is actually only justifiable to a degree: that it cannot generate any cost estimates or deliver predictions of fees is generally related to the fact that the opponent in the proceedings will always remain unpredictable and the outcome of the proceedings thus unforeseeable. Sometimes the obligor pays because he receives a call letter which is vested with enough authority to persuade him. However, often a court case lasting for years is necessary, in which the defendant tries all ways and means to buy time and to throw the court off the scent.

Therefore we place our trust in this centuries-old European system, which is still based on the correct tenet that equals must be handled equally, but disparate cases must also be treated unequally.





DDr. FÜRST

Rechtsanwalts-GmbH

Wiener Straße 9
A-2340 MÖDLING

Tel.: +43/2236/22139-0
Fax.: +43/2236/22139-36

kanzlei@fuerst-recht.at www.fuerst-recht.at