Court costs and attorney fees in a Peruvian civil case: who pays for the lawsuit?

Costas and costos are not the same thing

The law separates two kinds of expense, and the difference matters when it is time to pay.

Article 411 says:

“Son costos del proceso el honorario del Abogado de la parte vencedora, más un cinco por ciento destinado al Colegio de Abogados del Distrito Judicial respectivo para su Fondo Mutual y para cubrir los honorarios de los Abogados en los casos de Auxilio Judicial.”

The rule: the loser pays

Article 412, as amended by Ley 30293, says:

“La imposición de la condena en costas y costos no requiere ser demandada y es de cargo de la parte vencida, salvo declaración judicial expresa y motivada de la exoneración.”

(“An order to pay court costs and attorney fees does not have to be requested and falls on the losing party, unless the judge expressly exempts them with stated reasons.”)

Two practical consequences:

• Nobody has to ask for it. Even if the lawsuit says nothing about costs, the judge orders the loser to pay.
• Exemption is the exception. The judge can release the loser, but only with an express, reasoned ruling.

The same article adds rules for common situations:

• By instance. Costs are set at each instance. If the second instance reverses the first, the losing party pays the costs of both. The same applies to cassation.
• By claim. Where several claims were argued, the costs order only covers the ones decided in the winner’s favour.
• In side proceedings (incidentes). Whoever loses a side proceeding reimburses court fees, auxiliaries’ fees and other expenses of that proceeding, but not lawyer fees. The statement is prepared at the end of the case.

If several parties lose, article 414 makes them jointly liable (solidariamente): the winner can collect the whole amount from any of them. Exceptionally, the judge can set how much each one pays according to their role in the case, or even exempt one of them, in a reasoned ruling.

Who does not pay, even if they lose

Article 413 sets out three groups:

• Exempt: the Executive, Legislative and Judicial branches, the Public Prosecutor’s Office, constitutionally autonomous bodies, and regional and local governments.
• Exempt from case expenses: public universities, anyone granted legal aid (auxilio judicial), and the claimant in a family support (alimentos) case, within the limits set by law.
• Whoever accepts the claim in time: “También está exonerado quien reconoce o se allana a la demanda dentro del plazo para contestarla.”

That last point is the most useful for ordinary people. If you are sued for something you do owe, admitting it within the time to answer can save you the other side’s lawyer fees. The deadlines to answer are in served with a lawsuit.

If the case ends before judgment

If you are going to settle, make sure the agreement says what happens with costs. Article 415 is clear: “De omitirse el acuerdo sobre el reembolso de las costas y costos, se entiende que cada parte asume las propias” (if the agreement says nothing about reimbursing costs, each side bears its own).

How they are collected

Costas and costos are collected differently.

Costas are itemised. Under article 417, once the order awarding costs is final, the winner files a statement of the court expenses actually incurred. The loser has three days to challenge it, with suitable evidence. If there is no challenge, the statement is approved by a ruling that cannot be appealed.

Costos have to be proven. Article 418 requires the winner to file “documento indubitable y de fecha cierta” (a reliable document with a certain date) proving they paid their lawyer, plus the related taxes. The judge approves the amount based on those documents. Claiming a fee is not enough: payment has to be shown.

Payment has a deadline. Article 419 says reimbursement “se efectúa dentro del tercer día de quedar firme la resolución que las aprueba. Vencido el plazo, la falta de pago genera intereses legales” (is due within three days of the approving order becoming final; after that, legal interest runs).

What this page does not cover

We do not cover how much lawyers charge or current court fee amounts. We also do not cover fines the judge can impose during the case, which are a separate matter.