A trial can prove expensive for the parties, especially for the foreign companies having employees in France: as they work in English most of the time, this may imply translation or interpretation costs.
The costs of a trial, which will either be borne by the losing party or divided between all the parties, include “dépens” and “frais irrépétibles”.
1) How to distinguish between dépens and frais irrépétibles
The dépens are the costs directly required for the conduct of the trial, the amount of which is set either by regulation or by a judicial decision.
Such costs are listed in article 695 of the French Code of civil procedure and include duties, taxes, fees or excises collected by the courts’ clerks or the tax authorities, translation costs of documents when required by law or by an international commitment, expert witness’ fees, technicians’ remuneration, tariffed disbursements, fees of public or ministerial officers…). When holding on the merits of the case, the judge will rule on the costs in accordance with the provisions of article 696 of the Code of Civil Procedure. Article 696 provides that the losing party is meant to bear such costs, unless the judge decides otherwise in a substantiated decision. It thus often happens that such costs are eventually split between the parties.
The frais irrépétibles are not included in the costs mentioned in article 695 of the new Code of Civil Procedure. They are expenditures that are not subject to tariffs (i.e., lawyer’s fees, travel and accommodation expenses required for
the trial, costs incurred to obtain certain documents, fees paid to certain technical consultants or experts). They are governed by article 700 of the French Code of civil procedure. Such expenditures are thus collectively nicknamed ‘Article 700’.
Unlike dépens, the judge is not required to rule on frais irrépétibles if no such request is made by the parties. According to article 700 of the French Code of civil procedure, the party ordered to pay the dépens (or the losing party in case of no-cost proceedings such as those filed before the French Labour courts) is also led to pay to the other party an amount set by the judge taking into account “fairness or the economic situation of the party sentenced”.
2) A change in progress for the frais irrépétibles
On October 6, 2020, a French MP questioned the Secretary of Justice on the possibility to amend article 700 of the French Code of civil procedure (relating to the frais irrépétibles) considering that the current wording allowed judges to limit the financial consequences of an ill-founded court action with a view not to “over-repair” the winning party.
The Secretary of Justice answered that question on March 9, 2021: quoting a report submitted in June 2020 by Mr. Dominique Perben (a former Justice Secretary himself), the Secretary of Justice admitted that the winning party rarely recovers its full legal fees.
As this could dissuade some individuals to file a claim, the current Justice Secretary (a former attorney himself) explained that work is underway to rewrite Article 700 of the Code of Civil Procedure so that the amount awarded by the judge should be determined on the basis of all the sums actually incurred by the parties to the lawsuit (including, in particular, attorney fees).
If the intention is to promote access to justice by allowing the winning party to recover all its legal costs, it seems that, before taking a case before the French Labour courts, employees will better think twice before suing their employer: in case they do not prevail, they may indeed be sentenced to bear all their legal fees but also their employer’s, which – as you well know – may sometimes be considered quite significant!