Claims for litigation expenses are common after judgment is entered for either the claimant or the defendant. In considering such a claim, the underlying action must first be examined. A review of settled judgments of the general and commercial courts and the Supreme Court shows that this is, in essence, a claim for compensation for expenses incurred in pursuing the action, including lawyers’ fees, expert fees, travel expenses and other costs.
For compensation to be awarded, the courts require all elements of tortious liability to be established: fault, damage and a causal link. If any element is absent, there is no right to recover litigation expenses. A party who obtains a judgment is therefore not invariably entitled to recover those expenses.
Bringing an action is a right available to individuals generally, and its exercise is lawful unless the opposing party establishes, or the judicial circuit hearing the action finds, that the right was exercised abusively or maliciously. A further exception may arise where the existence of the right was unclear: the claim was unclear to the claimant or defendant until the court's judgment clarified it. In that situation, the court may find that compensation is not due because the action was brought in the exercise of a right without abuse or malice.
