Among the changes introduced by Law No. 13,467/2017 (the Labor Reform), the introduction of fees for loss of suit (article 791-A of the Consolidated Labor Laws) has raised controversies not only regarding the timing of its application, but also its parameters for setting such fees.
As provided for in articles 22 and 23 of Law No. 8,906/94 (the Statute of Brazilian Lawyers and the Brazilian Bar Association), despite being paid by the parties (claimant and defendant), fees for loss of suit belong to the attorneys and aim to remunerate the provision of services in the course of each case.
To define the amount to be paid, article 791-A of the Consolidated Labor Laws establishes that fees for loss of suit shall be set between a minimum of 5% and a maximum of 15%: (i) over the amount resulting from the liquidation of the judgment; (ii) over the value of the economic advantage obtained; or (iii) over the updated value of the cause if it is not possible to measure the economic benefit.
The legal provision also established guidelines to be observed in setting these fees, such as the degree of care by the professional, the place of provision of services, the nature and importance of the case, the work performed by the attorney, and the time required for his service.
All this shows that the law has no criterion that justifies the adoption of different methods to determine fees for loss of suit owed by the parties.
It so happens that the large majority of decisions after the Labor Reform with an order to pay reciprocal fees for loss of suit has set different criteria for calculating them for the parties, without there being a justified reason in that regard:
- Case No. 1002224-91.2017.5.02.0073: 5% fees for loss of suit calculated over the value of the liquidation of the judgment, 70% of this amount in favor of the claimant's attorney and 30% in favor of the defendant's attorney.
- Case No. 1002429-79.2017.5.02.0604: 10% fees for loss of suit, calculated over the value of the liquidation of the judgment in favor of the claimant’s attorney and over the estimated value of the claims rejected in favor of the attorney of the respondent.
- Case No. 1000485-90.2017.5.02.0491: 5% fees for loss of suit, calculated on the value of the liquidation of the judgment limited to the amount of R$ 5,000 in favor of the claimant's attorney and on the value of the matter limited to the amount of R$2,000 in favor of the defendant's attorney.
- Case No. 1000247-46.2018.5.02.0391: 5% fees for loss of suit, calculated over the value of the liquidation of the judgment in favor of the attorney of the claimant and over the value attributed to the prayer for relief dismissed per an estimate in favor of the defendant's attorney.
From the examples above, cited as examples, one notes that, in favor of the claimant party's attorneys, the fees for loss of suit are set at higher percentages and based on the value of the liquidation, whereas those established in favor of the attorneys of the respondent party tend to to be set per an estimation or based on the value attributed to the cause (which, for suits filed prior to the Labor Reform, usually do not represent the totality of the prayers for relief submitted in the matter).
The practice shows that the labor courts have set fees for loss of suit according to protective principles of labor, such as weaker position of one of the parties, while ignoring that the setting of the amount is not linked to the socioeconomic condition of the worker, but only to the services provided by the parties’ attorneys in the course of the proceedings.
There is in article 791-A of the Consolidated Labor Laws no criterion that differentiates the payment of fees for loss of suit according to the condition of the worker, but only according to the form of service performance of the attorneys.
In fact, the application of different criteria is tantamount to recognition by the judge that the work of one attorney is more valuable than that of the other party, which is not supported by the law and is not consistent with the common reality of the proceedings.
The establishment of different criteria for assessing the attorneys' work without any express and grounded justification is a clear violation of constitutional rights, such as equality (article 5 of the Federal Constitution), the prohibition on discrimination between professionals (article 7, XXXII, of the Federal Constitution), and access to work (article 6 of the Federal Constitution).
On the other hand, in matters relating to procedural law, the use of a different basis for calculation runs counter to the principle of parity in the treatment of the parties in the course of proceedings (articles 7 and 139 of the Code of Civil Procedure), which enshrines the need to ensure to the parties equality of treatment between procedural rights and duties, which includes the payment of fees arising from loss of suit.
Therefore, especially in cases of reciprocal loss of suit, the fees for the parties should be estimated according to identical criteria, preferentially taking into account the economic benefit, since it represents the actual gains and losses: the amount to be paid by the claimant must be set based on the liquidation of the prayers for relief dismissed, while the amount to be paid by the respondent must be set on the basis of the prayers for relief granted.
If different parameters are set, it is legitimate to bring an appeal questioning the differentiation.