Criteria for the imposition of costs in our contentious-administrative courts

In accordance with the regulation of procedural costs – art. 139.1 LJCA – the bodies of the contentious-administrative jurisdiction, in first or sole instance (the system of costs for appeals will be left for another occasion), when issuing a judgment or ruling by order on appeals and incidents brought before them, will impose the costs on the party that has had all its claims rejected, unless it appreciates and so reasons, that the case presented serious doubts of fact or law. In accordance with Article 139 (4) LJCA, costs may be imposed in full, in part or up to a maximum amount.

A combined reading of paragraphs 1 and 4 of Article 139 LJCA reveals that, in terms of costs in the first or only instance, the following scenarios are possible for those who have had all their claims rejected: i) being ordered to pay all the costs; ii) being ordered to pay part of the costs; iii) being ordered to pay up to a maximum amount of costs; iv) not being ordered to pay costs because of doubts of fact or law in the case.

This regulation of costs, which was introduced by art. 3.11 of Law 37/2011, of 10 October, broke with the general rule of non-imposition of costs in contentious-administrative proceedings. Thus, we went from the general rule being the non-imposition of costs to their imposition on the basis of the principle of maturity.

Shortly after this reform came into force, a Special Section for the Reform of the Law on Contentious-Administrative Jurisdiction was set up. In its “Explanatory Report and Proposal for a Law on the Efficiency of the Contentious-Administrative Jurisdiction” of March 2013, the Section observed a series of shortcomings in the system for determining costs. The one that interests us for this entry is the one that referred to the system for determining – assessment – of lawyer’s and solicitor’s fees and, specifically, the measure proposed to solve the inefficiency detected, which was none other than to regulate the amount of compensation for lawyer’s and solicitor’s fees. The reform proposal therefore consisted of:

<… in attributing to the Government the power to fix, by Royal Decree, the amount of the legal costs with regard to the costs of legal assistance and procedural representation of the winning party, on the understanding that this is a lump sum compensation, the amount of which is fixed in an objective and regulatory manner with total independence of the agreements reached by lawyers and solicitors with their clients, subject to free competition. Although the objective quantification of compensation will be decided by the Government, the Section considers that one of the possible determining factors for this quantification may be the existence of recklessness in one of the parties (for example, when an Administration reiterates administrative acts that have been repeatedly annulled by the Courts). Compensation for the mandatory legal defence and technical representation would be set after a report by the National Competition Commission, taking into account the reasonable remuneration of an average professional, which would require the corresponding market studies to be carried out. Finally, the judge or court, in the judgment that ends the proceedings, would not only impose the costs but would also set the amount for legal defence and technical representation in accordance with the tables or scales predetermined by regulation, thus avoiding controversy in the subsequent assessment procedure (in which the other items of costs would in any case be specified in accordance with art. 241.1 LEC).

This proposal by the Special Section for the Reform of the Law on Contentious-Administrative Jurisdiction fell on deaf ears, and the ineffectiveness that was detected was compounded by an even greater problem, namely that appellants have no way of calculating the cost of litigation. The day-to-day workings of the contentious-administrative jurisdiction show that the options of being ordered to pay costs, or not, or whether they are imposed in full, in part or with a maximum limit, depend on the luck of the distribution, as it depends a lot on the body that “touches” you whether the costs are imposed, or not, or whether, if they are imposed, they are imposed in full, in part or with a maximum amount. An example of this can be found in this entry on the sentence for costs in the contentious-administrative courts of Bilbao.

Following this entry, I located different agreements on the unification of criteria on the imposition of costs, namely: 1) that of the Barcelona Contentious-Administrative Courts; 2) that of the Santander Contentious-Administrative Courts; 3) that of the Oviedo Contentious-Administrative Courts; 4) that of the Plenary of the Contentious-Administrative Chamber of the Supreme Court of Castilla La Mancha; 5) that of the Plenary of the Contentious-Administrative Chamber of the Supreme Court of Andalusia – Seville; 6) that of the Plenary of the Contentious-Administrative Chamber of the Supreme Court of Andalusia – Malaga; and, finally, 7) the unifying criteria of the Contentious-Administrative Chamber of the Supreme Court of Murcia. Let us look at them in brief synthesis:

1.- The Barcelona Contentious-Administrative Courts systematise the unification agreement in four sections (from the second to the fifth, the first section being devoted to justifying the unification agreement). The second section regulates the criteria for imposition according to the content of the Judgment or Order. It regulates, among other things, how to proceed with regard to the imposition of costs in cases of withdrawal; acceptance; loss of subject matter; and total dismissal; and, finally, in cases of partial dismissal.

• Section Three regulates the criteria for imposing costs according to the procedural position in the appeal. It should be noted that costs will not be imposed on co-defendants who appear voluntarily, whatever the outcome of the proceedings -except in cases of recklessness or bad faith-.

• Section Four regulates the assessment criteria according to the object of the appeal. Thus, it differentiates between the cases of nullity or annulment of the act; de facto actions; and inactivity. Subsequently, it deals with the regulation of the incidents of art. 137 LJCA; precautionary measures; appeals for reconsideration and review; enforcement; and challenges to the assessment of costs.

Finally, section five sets out maximum amounts of costs for each type of procedure and content of the decision. The most relevant are as follows:

• In abbreviated proceedings based on the amount involved, a scale is established that ranges from 100.00 to 600.00 Euros. For abbreviated proceedings based on the subject matter, a scale is set at 200.00 Euros for immigration cases; 300.00 Euros for personnel and dependency cases; and between 200.00 and 500.00 Euros for abbreviated proceedings for unspecified amounts.
• In proceedings for the protection of fundamental rights, an amount of 600.00 Euros is fixed.
• In ordinary proceedings, a scale ranging from 800.00 to 5000.00 Euros is set for ordinary proceedings on the basis of the amount involved; in proceedings for unspecified amounts, 1000.00 Euros is set, with the possibility of increasing this to 2000.00 Euros in cases of special complexity or reducing it to 600.00 Euros in simple cases without relevant economic transcendence.
• Finally, the economic criteria are established for orders resolving preliminary pleadings (200.00 Euros in ordinary cases and those for the protection of fundamental rights; and 100.00 Euros in abbreviated cases); for orders resolving precautionary measures (100.00 Euros for immigration cases and 150.00 Euros for the rest, with the possibility of increasing it up to 500.00 Euros in complex cases or those with a high amount, or reducing it in the opposite case); for orders resolving appeals for reconsideration and review (150. 00 Euros); for orders resolving questions of enforcement (ranging from 200.00 to 400.00 Euros); and for orders of withdrawal; recognition in administrative proceedings; inadmissibility and loss of subject matter (200.00 Euros, with the possibility of increasing up to 1000.00 Euros, in ordinary proceedings or proceedings for the protection of fundamental rights of special complexity or high amounts; and 100.00 Euros in abbreviated proceedings).

2.- The Contentious-Administrative Courts of Santander, on the other hand, in those cases where the amount is undetermined or, being determined, is very high despite being a strictly legal matter or lacking in practical transcendence outside the process (and especially in matters of aliens and personnel) it is indicated that the maximum amount of the costs will be between 500.00 and 800.00 Euros. In precautionary measures and in other incidents of special pronouncement the amount of the costs is fixed at 150.00 Euros.

3.- The Contentious-Administrative Courts of Oviedo establish the following ranges: for ordinary proceedings, up to 3000.00 Euros; for abbreviated proceedings, from 250.00 to 1000.00 Euros; for orders resolving incidents of execution, between 250.00 and 1000.00 Euros.

4.- The Plenary of the Chamber for Contentious-Administrative Proceedings of the Supreme Court of Castilla La Mancha, for its part, establishes the following limitations:

• For judgments in first instance proceedings: €500.00 for cases of great simplicity; €1,500.00 for cases of medium complexity; and €3,000.00 for cases of higher complexity.
• With regard to 2nd instance decisions of medium complexity, 1,000.00 Euros are established for appeals against judgments and 500.00 Euros for appeals against orders. With regard to orders, 1000.00 Euros are established for cases of inadmissibility; and 200.00 Euros in the event that the same is admitted.
• In the case of acceptance, a minimum of 60% of the general rule is established.
• In incidental matters, it is established that in precautionary measures of medium complexity the sum of the costs will be 200.00 Euros; this sum is reduced to half (100.00 Euros) in cases of less complexity.
• For appeals for reconsideration a sum of 100,00 Euros is established.
• No criterion is established for the incidents of enforcement of judgement, except for the settlement of interest, which is set at 100.00 Euros. The nullity incident is set at the sum of 300.00 Euros; the same as for the incidents of extension of effects (300.00 Euros).
• For preliminary pleadings, the sum of 200.00 Euros is fixed.
• And, finally, for decisions on cassation appeals, the sum of 1,500.00 Euros is set for cases of medium complexity (this must be due to an error, because Article 93.4 LJCA expressly provides for the non-imposition of costs in these cases unless recklessness or bad faith is found); and 1,000.00 Euros in the event that the appeal is inadmissible by Order.

5.- The Plenary of the Chamber for Contentious-Administrative Proceedings of the Supreme Court of Andalusia (Malaga) establishes the following general quantitative limits:

• Ordinary proceedings without a trial: 1,500.00 euros.
• Ordinary proceedings with a trial: 2,000.00 euros.
• Appeal: 1.000,00 euros.
• Appeal with taking of evidence: 1.500,00 euros.
• Appeal in matters relating to foreigners: 200.00 euros.
• Precautionary measures: 300.00 euros.
• Exceptional incident of nullity of proceedings: 500.00 euros.
• Appeal for reconsideration: 100.00 euros.
• Incidents of execution: 500.00 euros.

6.- The Plenary of the Chamber for Contentious-Administrative Proceedings of the Supreme Court of Andalusia (Seville) establishes the following general quantitative limits:

• Ordinary proceedings: 1,000.00 euros.
• Appeal: 800.00 euros.
• Appeal in matters relating to aliens and personnel: 300.00 euros.
• Appeal in matters relating to aliens: 200.00 euros.
• Motion for annulment of proceedings and enforcement: 300.00 to 500.00 euros.
• Appeal for reconsideration: 100.00 euros.
• For precautionary measures, it is established that there will be no imposition of costs.
• Serial or repetitive appeals (mass appeals): 300,00 Euros.
• Appeals of extraordinary amounts: 4.000,00 Euros as a maximum figure.

7.- The Plenary of the Chamber for Contentious-Administrative Proceedings of the Supreme Court of Murcia has not established quantitative limits. Its compilation of criteria refers to when to appreciate bad faith or recklessness; how to proceed in cases of acquiescence; loss of object; extra-procedural satisfaction; plurality of parties, especially referring to co-defendants who appear voluntarily; in precautionary measures; in incidents of nullity; in cases of accumulation and extension; clarification; recusal; extension of effects of evidence; extension of effects of judgement….

I have tried to find out the criteria followed by the other Chambers for Contentious-Administrative Proceedings by telephoning the Lawyers for the Administration of Justice of these Chambers. Well, the High Courts of Justice of Cantabria, La Rioja, the Canary Islands, Castile and Leon, Extremadura, Galicia, Navarre, the Basque Country and Asturias do not have criteria establishing quantitative limits in general, although there are some nuances.

Thus, the Tenerife branch of the Canary Islands Supreme Court limits costs in appeals, while the Las Palmas branch limits them in first instance proceedings (ordinary) and appeals. The Contentious-Administrative Chamber of Castilla y León limits the costs in appeals in matters relating to aliens to 900.00 Euros. With regard to the TSJ of Catalonia, when I contacted them, they did not have written criteria, but they did indicate that they were working on it and that they expected to have them between May and June 2019. Finally, I would like to clarify that although I had heard that the TSJ of Galicia did have criteria, its presidency clarified that there was no agreement as such, without prejudice to the fact that they were obviously trying to avoid contradictory solutions.

I was unable to contact the High Courts of Justice of Madrid and Asturias, while the High Court of Justice of Valencia told me that there were criteria, but I have not been able to obtain them.

According to data as of 1 January 2018 from the CGPJ, the situation of the judicial plant in the contentious-administrative jurisdiction is as follows:

• Unipersonal bodies (241): 229 Contentious-Administrative Courts and 12 Central Contentious-Administrative Courts.
• Collegiate bodies (23): 21 Contentious-Administrative Chambers of the High Courts of Justice; 1 Contentious-Administrative Chamber of the National High Court (although the data provided is that of its sections -8-); and the Third Chamber of the Supreme Court.

That is, without taking into account the different sections of the collegiate bodies, we have a total of 264 jurisdictional bodies in the contentious-administrative jurisdiction. The movement of cases of all these courts during 2018 has meant a total of 126,849 judgments and 15,433 executions of judgments resolved as shown in the following table

In view of this reality, and given that, with the exceptions mentioned, there are no unification criteria in an overwhelming majority of Chambers and Courts for Contentious-Administrative Proceedings, it is urgent and necessary for the legislator to take up the proposal of the Special Section for the Reform of the Law on Contentious-Administrative Jurisdiction and, consequently, to regulate by regulation the amount of compensation for lawyer and solicitor’s fees, regardless of the agreements reached by lawyers and solicitors, Consequently, the amount of compensation for lawyer’s and solicitor’s fees should be regulated by regulation, regardless of the agreements reached by lawyers and solicitors with their clients, as it could not be otherwise.

And the urgency and necessity is not only from the point of view of the efficiency of administrative justice, but also, and especially, from the perspective that litigants can calculate the cost of litigation. This cost currently depends more on the judicial body that is going to resolve the process than on the regulation of the LJCA itself, because while there are bodies that apply doubts of fact or law quite broadly, there are those that apply it restrictively. There are also those who prefer to limit costs (especially in matters of foreigners; traffic and personal sanctions); or those who prefer to impose them in their entirety.

Therefore, unless we return to the previous system of not imposing costs in cases of first or only instance, it is preferable to have tables or scales predetermined by regulation, to which the Judges or Courts must be subject, rather than making the amount of the sentence for costs depend on the fate of the distribution. In the meantime, it is to be welcomed that certain Courts and Chambers have taken the step of adopting unifying criteria to provide some legal certainty to the system. May these lines serve as an example for the rest to follow, so that the parties know what to expect when bringing actions before the contentious-administrative jurisdiction.

Update 9-XII-2019

We have been able to access the Agreement of the Plenary of the Contentious-Administrative Chamber of the TSJ of Catalonia, of 23 May 2019, which proceeds to unify the fixing of the maximum amounts of the procedural costs (Third Agreement). The indicative amounts, depending on the amount and complexity of the case, that the Administrative Chamber of the Supreme Court of Catalonia has established for cases within its jurisdiction are as follows:

When they are resolved by Judgment: 500, 1,000, 2,000, 3,000 or 4,000 euros, for all concepts and including VAT.
100, 500 or 1,000 euros, all inclusive of VAT.

The Agreement establishes that the Court will be free to deviate from the indicative criteria when the case makes it appropriate for the effectiveness of the judicial protection requested, which must be duly motivated.

Update 19-III-2021

We have been able to access the Agreement of the Plenary of the Contentious-Administrative Chamber of the Supreme Court of Asturias, dated 3 March 2021, which publishes the Chamber’s guiding criteria for determining the amount of procedural costs.

We will highlight two issues from the aforementioned agreement, namely:

First. – That in cases in which a presumed rejection is contested, even if an express decision is issued in the course of the proceedings, it will be understood that there have been serious doubts of fact or law, since the appellant has not been able to know the basis or response to his request, appeal or claim in the face of inactivity and, consequently, no sentence in costs will be made. Exceptions to this presumption are cases in which it is clear from the nature of the case that the lack of response from the administration was justified by structural reasons or mass requests or complaints.

Second. – That when the Chamber considers that it is appropriate, in accordance with Art. 139.4 LJCA, to impose costs in a maximum amount, the indicative amounts of these will be:

Ordinary proceedings: 500 euros;

Appeal: 400 euros;

Appeals in matters relating to aliens, dependency and repetitive cases: 200 euros;

Exceptional incident of nullity of proceedings: 500 euros;

Appeal for reconsideration: 50 euros.

The Agreement establishes that these amounts, which are indicative and set in general terms, may be increased or reduced in cases in which the complexity or simplicity of the case is greater than the average number of cases brought before the Chamber, and in all cases safeguarding the casuistry that may reveal singular circumstances that make it advisable to depart from the criterion. Matters of complexity are expressly considered to be those relating to proceedings challenging town planning and general provisions.