Court costs and legal fees (dépens and frais irrépétibles)

Court costs (dépens) and legal fees (frais irrépétibles) are the two categories of litigation expenses that may be charged to the opposing party. Court costs are listed in Article 695 of the Code of Civil Procedure (duties and taxes, service fees, remuneration of technical experts), and the losing party is ordered to pay them under Article 696. Legal fees, chief among them lawyers’ fees, fall under Article 700.

Recovery of legal fees

Article 700 gives the court broad discretion: it orders the party liable for costs to pay a sum it determines having regard to fairness and the debtor’s economic situation, and may decline to make any order. In patent cases, the sums awarded usually remain below the costs actually incurred, even though the cost of technical litigation includes patent attorneys’ fees, technical opinions and translations. The claim must therefore be supported document by document.

Costs in technical litigation

The costs of a saisie-contrefaçon and of a court-appointed expert’s report weigh heavily in the assessment. Partial success frequently leads to costs being shared, each party then bearing its own expenses, and the court may, by a reasoned decision, leave costs with the winning party. Where the proceedings end by withdrawal or settlement, court costs and legal fees are dealt with in the agreement itself.

The regime before the UPC

Article 69 of the Agreement on a Unified Patent Court adopts a principle more favourable to the successful party: reasonable and proportionate costs of representation are in principle borne by the unsuccessful party, up to ceilings set by the Administrative Committee. The entry on UPC court fees explains the calculation, and the entry on security for costs sets out the security the Court may require.

Key points

French litigation compensates legal fees on a lump-sum basis, the unified system far more completely. This gap is part of the choice of forum, just like the time to judgment. In both systems, a clear record of the costs incurred determines what will actually be reimbursed.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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