The supreme court has established what should considered as a final judicial in a case. A comment by Alena Bachinskaya for

14 june 2017 2017-06-14

The Economic Chamber of the Supreme Court examined the time from which the application for collection of judicial costs should be filed and concluded that one may file it since the date when the Circuit Commercial Court or the Supreme Court decided to refuse to accept the cassation appeal.

In 2014, the Moscow City Commercial Court dismissed the claim of Marta Firm to recover from the Moscow United Electric Grid Company (MOEK) 4.1 million rubles as unjust enrichment and 486,886 rubles as interest, as well as to amend the agreement on technological connection to the company's electricity grids (case No. A40-27392 / 2014). The 9th Appellate Commercial Court canceled this decision and partially satisfied the claim of "Marta", collecting 3.2 million rubles as unjust enrichment and 400,037 rubles as interest. The Cassation Court of the Moscow Circuit sustained the decision of the appeals court, and the Supreme Court refused to accept the cassation appeal of the plaintiff for consideration by the economic chamber.

In March 2016, the same firm filed an application with Moscow City Commercial Court to collect 661,023 rubles as judicial expenses. However, the court of first instance and later the appeal and the cassation have decided that Marta had missed the six-month deadline for filing the application. The respective period of time should be counted from July 6, 2015, the date of the decision of the circuit court, which ended the consideration of the case on the merits. Taking into account the days off and holidays, the deadline for filing the application expired on January 11, 2016, the courts counted.

In its complaint to the Supreme Court Marta pointed to the misinterpretation by courts of Article 112 of the Code of Arbitral Procedure ("Solving issues of court expenses"). The firm believed that the latest judicial act was the Supreme Court ruling dated September 14, 2015, and not the resolution of the Cassation Court of the Moscow District. According to the explanations of paragraph 30 of Resolution No. 12 of the  Supreme Commercial Court, according to the previous procedural legislation, the latest judicial act was the determination of the SCC on refusal to transfer the case to the Presidium or the decision of the SCC Presidium. Marta indicated that after the adoption of amendments to the Code, which changed the procedure for appealing court decisions and introduced a cassation appeal procedure in the Supreme Court, Resolution No. 12 was subject to revision. But the explanation, stated in paragraph 30, remained unchanged, which allows to make a conclusion as to its relevance. The Economic Chamber, having agreed with the arguments of the firm, reversed the decisions of lower instances and sent the case for new consideration in the Moscow City Court.

What lawyers say

The position of the Supreme Court is justified, according to Marina Kostina, attorney of Yakovlev & Partners: firstly, it corresponds to the previous position of the Supreme Commercial Court; secondly, a different approach would require participants in the process interested in compensating court expenses, to file the respective application before the issue of cassation appeal is decided by the Presidium. The six-month period may expire while the Presidium decides, and thus the issue of expenses can be resolved irrespective of the results of cassation appeal and could be satisfied in favor of the party that may lose as a result of cassation, the lawyer explains.

It is very often that by the time when the ruling of the Supreme Council refusing to consider the case or transferring it to the Economic Chamber, the six-month period has already passed, also notes Alena Ermolenko, senior legal advisor of FBK Pravo. "Of course, lawyers, in order not to miss this deadline, usually file an application for collection of court expenses earlier, without waiting for the decision of the Supreme Court to transfer the case to the second appeal," the expert adds. "But this state of affairs obviously violates the procedural rights of the winning party and overburdens the judicial system itself, because the winning party will be forced to file a separate application for recovery of court costs at the stage of consideration of the case in the Supreme Court."

The controversial situation arose because of ambiguous explanations contained in Resolution No. 12, to which the plaintiff refers, says Alena Bachinskaya of S&K Vertical." Article 112 of the Procedural Code refers to the fact that the six-month period for filing an application for recovery of judicial costs is calculated from the moment of the final judicial act that examined the merits of the case." Paragraph 30 of the resolution of the Plenum of the Supreme Commercial Court No. 12 clarified this provision by including among such "essential" judicial acts the decisions of courts of cassation and judicial acts of the supervisory authority, including the refusal to transfer the case in supervision", lawyer explains.

On the one hand, the plaintiff draws an analogy with the "refusing" supervisory ruling of the Supreme Commercial Court that were in fact the last judicial act in the case, continues Bachinskaya. On the other hand, the comparison is not entirely correct, she believes, since the current Code also provides an opportunity to file a complaint to the chairman or vice-chairman of the Supreme Court, if the judge of the economic chamber previously refused to transfer the case for consideration. "Nevertheless, in my opinion, it will be right to count the deadlines from the decision rendered upon consideration of the cassation appeal in the Supreme Court. The Code gives the participants the right to file a cassation to the chamber of the Supreme Court. And if the cassation is accepted to the chamber and, based on its results, a ruling is rendered, which is unquestionably a judicial act rendered on the merits of the dispute, then the "refusing" ruling should also be taken into account," Bachinskaya sums up.

Пресненская набережная, 6 строение 2 123112 Москва
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