When closing proceedings in a case with referral for further consideration under the established jurisdiction, the court fee is refunded by the court that makes a decision on the merits - SC GC

If proceedings in a case are closed on the basis of paragraph 1, part 1, Article 255 of the Civil Procedural Code of Ukraine, in case a party has not filed a request to refer the case to the established jurisdiction within the time limit specified by this Code, the court fee must be refunded from the state budget at its request.

If proceedings in a case are terminated pursuant to paragraph 1, part 1, Article 255 of the Civil Procedural Code of Ukraine and if the plaintiff applies for referral of the case for further consideration under the established jurisdiction, the consideration of such a case is not terminated and is continued by the competent court, which will result in the distribution of court costs and refund of the court fee from the state budget.

That was stated by the Grand Chamber of the Supreme Court.

In this case, the LLC filed a lawsuit, in particular, to be recognised as a mortgagee under the mortgage agreement and to invalidate the mortgage agreement. The courts of previous instances satisfied the claim. The Civil Cassation Court of the Supreme Court cancelled the court decisions and closed the proceedings, informing the plaintiff that the case was within the jurisdiction of the commercial courts. Subsequently, the Supreme Court transferred the case to the commercial court for further consideration.

The Supreme Court received motions from the plaintiff and the defendant to refund the court fees for filing appeals and cassation appeals in connection with the closure of the SC proceedings and the referral of the case to the local commercial court under the established jurisdiction.

The Grand Chamber of the Supreme Court noted that the paid amount of the court fee is refunded at the request of the person who paid it by court order in case of closure of the proceedings (unless the proceedings are closed due to the plaintiff's withdrawal of the claim and such withdrawal is recognised by the court), including in the appellate and cassation instances (paragraph 5, part 1, Article 7 of the Law of Ukraine "On Court Fee").

As follows from the analysis of procedural legislation, there is no reason to believe that the court fee when transferring a case to another court should be paid again to the account of the court in which the case is actually considered. The State Judicial Administration of Ukraine may reallocate the paid funds in the manner determined by it or in the manner determined by another competent state authority.

The court fee is paid from the moment it is credited to the special fund of the State Budget of Ukraine, and the court that received the case upon its referral under jurisdiction has no right to demand re-payment of the court fee at the place of consideration of the case. Therefore, there are no grounds for refunding the court fee if the proceedings in the case are closed and the case is transferred to another court where the case is actually considered.

According to the conclusion of the Grand Chamber of the Supreme Court, closing the proceedings in a case with its referral for further consideration by a court of competent jurisdiction does not terminate the consideration of this case. The court proceedings are continued by the court with jurisdiction over the case by law.

In this case, the final allocation of court costs, including compensation to the party in whose favour the decision on the merits of the dispute will be reached, will be made by the court based on the results of the case.

Thus, the filing by the plaintiff of an application (in case of closure of the proceedings pursuant to paragraph 1, part 1, Article 255 of the Civil Procedural Code of Ukraine) for referral of the case to the established jurisdiction makes it impossible to refund the court fee.

As the panel of judges of the First Judicial Chamber of the Civil Cassation Court of the Supreme Court referred the case for further consideration, there are no grounds for refunding the court fee.

The Grand Chamber of the Supreme Court found that the issue of distribution, reallocation or refund of the court fee should be decided by the court of competent jurisdiction, in the proceedings of which the case is considered on the merits.

Therefore, in the opinion of the SC Grand Chamber, the plaintiffs in this case should have filed petitions for the return of the court fee with the local commercial court that made the final decision in the case, and such an address is appropriate.

Resolution of the Grand Chamber of the Supreme Court of 22 May 2024 in case No. 760/30077/19 (proceedings No. 14-31цс23) - https://reyestr.court.gov.ua/Review/120088908.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.