Proposition 51K2891

Projet de loi relatif à la répétibilité des honoraires et des frais d'avocat.

General information ¶

Submitted by

The Senate

Submission date

May 4, 2006

Official page

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Status

Adopted

Requirement

Simple

Subjects

lawyer civil procedure legal expenses pay judicial proceedings access to the courts

Voting ¶

Voted to adopt

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Discussion ¶

March 29, 2007 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, colleagues, I, together with former colleague Claes, submitted a bill in the House at that time. A similar bill was submitted to the Senate by colleagues Talhaoui and Koninckx. That proposal, which was amended by the government, after talking back with the two orders of lawyers, was adopted in the Senate. It was subsequently transferred to the Chamber, where it was approved in the committee.

You know that since the beginning of this legislature, I have been an ardent advocate of the repeatability of lawyer fees.

No one can accept to win a trial while losing it, on the other hand, by paying fees that may prove consistent in certain circumstances. Likewise, we cannot tolerate that this payment may become a barrier to access to justice.

It is in this spirit and in view of the objectives shared by all that the analysis of the project took place in the Senate. Everyone seems to have put water in their wine. Personally, I was more favourable to a pure and harsh repeatability, at a rate of fees.

A reasonable proposal was submitted to us by the representatives of the bars, aimed at substantially increasing the procedural compensation, leaving a well-framed discretion in the head of the magistrates. This compromise solution should satisfy everyone. That is why we will support this text soon.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker.

Our country is one of the few in Europe where non-tellability is still the rule. The Court of Cassation has initiated this change. In the meantime it is high time. The judgment of the Court of Cassation had created great legal uncertainty. The judges react differently to the judgment, which leads to different judgments and unequal treatment of the applicants.

The discussion in the Chamber Committee was able to go quickly, because there is great consensus on the essence, on the broad lines, and because in the Senate a lot was changed to the original plans of the minister.

I would like to emphasize that we are satisfied that the link that the Minister wanted to make between the recourseability of the honorary wages and the barema of the honorary wages was removed. For us, a baremization of the honorary wages could not be the case. It is also important that the contracting parties – I mean the lawyer and her or his client – are free to agree a price with each other. We are pleased that the Minister has consulted on this and on the other points and has returned to its views on the baremization. As a result, the design enjoys great consensus.

In our view, it is the logic itself and fair that a person who is forced to take an attorney under his arm to compensate or cancel the damage or injustice caused to him or her by the fault of another, should not bear the costs of this if he or she gets right.

The introduction of the recourseability may also have a process-economic importance. In fact, the parties will think twice before initiating a procedure, as a procedure becomes more expensive in case of loss. It will be judged more efficiently.

Starting from the conclusion that a tariffing of the honorary wages is not desirable, a full and unlimited recourse of the lawyer’s costs is also not justified. For example, if the winning party would employ the most expensive lawyer in the market, it would be unfair to have the losing party bear those costs in full.

Finally, we have reached the path proposed in this draft law, namely the judicial fee, understood as the compensation for the interventions of the lawyers of the opposing party as part of the court costs.

I have only two concerns about the draft. In the first place there is the fact that the amounts that will eventually be imposed, in particular the increase of the court fee, will be recorded in a KB. We wonder to what extent the losing party will feel the “true” because in fact the amounts that will be recorded in the KB are crucial. We therefore ask the Minister to keep those amounts substantial, so that the purpose of the bill is achieved.

A second and last note concerns the entry into force of this draft. It will not enter into force until 1 January 2008, where we had proposed to take the beginning of the legal year – 1 September – as the starting point for this new scheme.

We are very happy that there will be no bars, namely storytelling, and we will therefore support this design.