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18 December 2012
Argentine law provides for litigation without costs in both civil and commercial proceedings. This process allows plaintiffs that lack financial resources access to the courts. Thus, in Argentina, poverty should not impede parties from accessing the courts to enforce their rights.
When the judge grants litigation without costs, the plaintiff obtains a letter of indemnity – in whole or in part – against the expenses of the judicial process until its financial situation improves.
If a plaintiff is not granted litigation without costs, the rule is that the losing party pays. However, what is the situation if a plaintiff loses in court, but has been granted litigation without costs?
This issue often arises with regard to the fees of the legal professionals involved in the process. Often, the plaintiff submits an expert opinion or includes an expert report in the process of claiming for damages arising from defective performance or breach of contract. Such evidence is expensive to obtain and is often unnecessary for the resolution of the conflict. However, plaintiffs tend to commission such experts if the court has granted them litigation without costs.
Under the Argentine rules of court procedure, legal professionals can claim up to 50% of the expert witness fees from the opposing party. Therefore, despite winning the trial, a company may have to pay for expert evidence that was not used and that was unnecessary to the resolution of the conflict.
In such cases, the best option is for the defendant to challenge such evidence at the time of responding to the complaint.
Before the expert evidence is presented, the parties are notified of the evidence that the plaintiff intend to produce during the trial. At this time, the defendant may highlight additional issues (other than those proposed by the plaintiff) and state whether it will concur or call its own expert, in addition to that appointed by the court. The defendant can also challenge the expert evidence brought by the other party.
A defendant can make such challenge if it considers that appreciation of the relevant facts requires no special knowledge of science, art or industry, or specialised technical activity. The judge may then accept or reject the suggested expert evidence. If the judge accepts the expert evidence, but such evidence turns out not to be essential to the case, the relevant costs will be borne by the party that called the expert. This is the case even if the plaintiff has been granted litigation without costs.
The other option for the defendant is to demonstrate its indifference to the use of expert evidence when it responds to the complaint. In such case, if the expert testimony is presented anyway, the expense shall be borne by the plaintiff that proposed it, even if it has been granted litigation without costs.
There is one exception to this situation. If the judge rejects the plaintiff's claim and finds in favour of the defendant, 50% of the expert costs will be borne by the defendant if the plaintiff was granted litigation without costs. However, for this to apply, the judge must have taken the expert evidence into account when making his or her decision.
For further information on this topic please contact Elizabeth Mireya Freidenberg at Freidenberg Freidenberg & Lifsic by telephone (+54 11 4311 4991), fax (+54 11 4311 0852) or email (email@example.com).
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