Abuse of procedural rights by an attorney as grounds for imposing a fine on a law firm in civil proceedings

Abstract

Problem Statement An analysis of recent scholarship on the category of abuse of procedural rights demonstrates both the widespread nature and the conceptual elusiveness of this phenomenon. D. Luspenyk observes that abuse of procedural rights (delaying the proceedings, undertaking “procedural sabotage”) is a highly subjective and evaluative concept. When determining whether a party has abused procedural rights, the court proceeds from its internal conviction— that is, from a discretionary assessment based on the evidence. A counterbalance to the abuse of procedural rights is the principle of the good-faith exercise of such rights, which is recognized as a normative standard of judicial procedure . It is appropriate to agree with Ya. Panaid that existing doctrinal approaches to defining abuse of procedural rights may be grouped into two categories: a) approaches treating abuse of procedural rights as a legal offense; and b) approaches whose proponents interpret abuse of procedural rights as a mode of exercising a procedural right, which becomes abusive upon the failure to satisfy certain socio-legal conditions.When defining abuse of procedural rights, its contextual linkage with the duty of good-faith exercise of procedural rights by participants and their representatives must be taken into account. In our view, this reflects the division found in scholarly literature and judicial case-law: abuse of procedural rights may denote either the inconsistency between the result of exercising a procedural right and the objectives of civil litigation, or the unlawfulness of the participant’s conduct. Analysis of Recent Research and Publications. The issue of abuse of procedural rights has been addressed in numerous publications, including those authored by N. Banchynska, D. Luspenyk, Ya. Bernazyuk, V. Komarov, T. Tsuina, N. Sakara, Ya. Panaid, and A. Tkachuk. Much fewer studies have focused on abuse of procedural rights by attorneys specifically, including works by V. Zaborovskyi, N. Herasymchuk, and N. Dobrovolska. Purpose of the Article. The purpose of this article is to examine both the theoretical and practical aspects of abuse of procedural rights by an attorney in civil proceedings as grounds for the imposition of a fine. Article’s main body. The article provides a comprehensive examination of one of the mechanisms for counteracting and preventing the abuse of civil procedural rights in civil proceedings in Ukraine. It analyses the legal nature of a fine as a type of procedural coercive measure in civil litigation and identifies the specific features of its application to legal representatives as participants in judicial proceedings. It is emphasized that a fine does not constitute a form of disciplinary liability for an attorney but serves an independent functional purpose in civil procedure—namely, to compel compliance with court-established rules, to ensure good-faith performance of procedural duties, to terminate abuse of procedural rights, and to prevent the creation of unlawful obstacles to the administration of justice. The author draws attention to the dual character of the relations in which a representative operates: substantive-law relations with the client arising from a legal services agreement, and procedural-law relations with the court. The article notes that, when defining the concept of abuse of procedural rights, it is necessary to take into account its contextual relationship with the good-faith exercise of procedural rights, which constitutes a duty of the parties and their representatives in judicial proceedings. This reflects the existing division in legal scholarship and judicial practice regarding approaches to defining abuse of procedural rights: it may signify either a discrepancy between the outcome of the exercise of a procedural right and the objectives of civil proceedings, or the unlawfulness of the participant’s conduct itself. A separate section is devoted to the analysis of the Supreme Court ruling of 14 July 2022 in case No. 755/11559/16c, in which the attorney’s filing of a second cassation complaint was held to constitute an abuse of procedural rights, and a fine was imposed on the law firm.