Winning a lawsuit does not automatically mean recovering the amounts spent on defense. Lawyer fees, for example, are not part of the expenses that the losing party must reimburse by right. This is precisely the role of Article 700 of the Code of Civil Procedure: to allow the judge to order one party to compensate the legal costs incurred by the other, beyond the classic costs.
Irrecoverable costs and expenses: the distinction that changes everything
Before discussing Article 700, it is essential to understand what the law refers to as expenses. These are the procedural costs listed by the code: court fees, remuneration of bailiffs, costs of expert assessments ordered by the judge. Their reimbursement is automatic for the winning party.
Lawyer fees, however, do not fall into this category. They are referred to as irrecoverable costs, precisely because they are not recoverable by right. Article 700 exists to correct this imbalance: it gives the judge the power to grant compensation covering all or part of these costs.
To fully grasp the implications of Article 700 of the Civil Code, it is important to note that this compensation is never automatic. It relies on an express request from the concerned party and the judge’s assessment.
Discretionary power of the judge: how the amount is determined
Are you wondering how a judge decides on the amount granted under Article 700? No legal scale is imposed on them. The text leaves them with a discretionary power based on equity.
In practice, the judge evaluates several elements before setting the amount:
- The economic situation of the condemned party: a person with modest income will not be treated the same as a large corporation
- The behavior of the parties during the proceedings: a party that has engaged in dilatory tactics may be imposed a higher amount
- The complexity of the dispute and the volume of legal work it required
The judge can also refuse any compensation, even if one party requests it. They may also grant compensation to the losing party in exceptional situations when equity demands it.
2022 decree and legal aid: an unknown minimum
The relationship between Article 700 and legal aid is a point that most legal guides overlook. However, Decree No. 2022-245 of February 25, 2022, introduced a notable change.
When the winning party benefits from legal aid (total or partial), their lawyer is partially paid by the State. Before 2022, the judge could allocate any amount under Article 700, including a derisory sum.
Since this decree, the amount allocated to the lawyer cannot be less than the State’s contributory share increased by 50%. This legal minimum ensures a minimum remuneration for the lawyer who defended a litigant assisted by the State. In practice, this changes the game for lawyers who accept cases under legal aid.
Two possible beneficiaries, two different logics
Article 700 actually distinguishes between two situations. The judge can compensate either the party or their lawyer, depending on whether the litigant benefits from legal aid or not.
If you do not benefit from legal aid, it is you, as the party, who receives the compensation. You keep it to offset your expenses.
If you benefit from legal aid, the judge may allocate the sum directly to your lawyer, provided that the lawyer waives the State’s contributory share. These two regimes coexist within the same article but follow their own rules.
Requesting Article 700: concrete mistakes to avoid
The request for compensation under Article 700 must be included in your written conclusions. The judge cannot grant it ex officio: without an express request, there is no compensation, even if your victory is total.
Several mistakes frequently occur:
- Forgetting to make the request in your written submissions, thinking that the judge will consider it on their own
- Not providing any proof of the expenses incurred (lawyer invoices, private expert fees, travel related to the trial)
- Requesting an amount disconnected from the reality of the case, which may lead the judge to drastically reduce the sum or refuse it
On appeal, the request can be made for the first time, even if it was not presented in the first instance. This point is often overlooked by litigants who think they have “missed the boat.”
Collection in case of non-payment
The judge’s decision granting an amount under Article 700 has executory force. If the condemned party does not pay spontaneously, you can resort to a bailiff to obtain forced payment, just like for any judicial claim.
Legal interest accrues on this amount under the same conditions as on the principal debt, in accordance with the rules of the civil code.
Article 700 remains a tool for rebalancing, not a mechanism for full reimbursement. The amount obtained rarely covers the entirety of the incurred fees. Anticipating this gap from the beginning of a procedure allows for better budgeting and expectations regarding the trial.